UC-NRLf; 


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4 

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*i   Q      a  ^B    50  Single  Num  >ers,  25c. 


•No.  4.  ,  July,   1900. 


THE  BONDAGE  OF  CITIES 


Parsons. 


WITH 

THE  REASONS  FOR  MUNICIPAL  LIBERTY, 

CONSTITUTIONAL  AMENDMENTS  AND  STATUTORY  ENACTMENTS 

LREADY  ADOPTED  TO  SECURE  SELF-GOVERNMENT  IN  LOCAL  AFFAIRS, 

AND,  SUGGESTIONS 

FOR  IMPROVED  AMENDMENTS  AND  STATUTES 

AND  FOR 

A  MODEL  CHARTER.       : 


No  Copyright. 


On  the  contrary,  an  invitation  is  extended  to  all  to  do  their  utmost 
in  every  -way  to  spread  the  truths  contained'  lu  the  following  pages. 
Newspaper*  and  maga«ines  are  at  liberty  to  quota  as  freely  as  they  will, 
due  credit  only  being  askt. 


PUBLU.HT  BY 

C.    K.   TAYLOR 
1520  Chestnut  Street,  Philadllphia,  Pa, 


The  Bondage  of  Cities 


A    REPRINT  OF   CHAPTER    III,  (WITH    ORIGINAL  PAGING    FROM    THE   WORK    EN- 
TITLED "THE  CITY  FOR  THE    PEOPLE,"    ON    THE   SUBJECT  OF    HOME 
RULE  FOR  CITIES,  SHOWING  THE  BONDAGE  OF  CITIES  TO  STATE 
LEGISLATURES,  WITH    A  DISCUSSION    OF  METHODS    FOR 
OBTAINING    FREEDOM    AND   SELF-GOVERNMENT. 


The  whole  subject  REVISED  and  NfcW  MATTER  of  much  importance  added. 


BY 


FRANK   PARSONS 

Lecturer  in  Boston  University  Law  School;  Member  Boston  Bar;  Author  of  Parsons'  Edition  of  Morse  on  Banks 
and  Banking ;  Editor  of  May  on  Insurance,  Perry  on  Trusts,  and  other  legal  works ;  Professor  of  His- 
tory and  Political  Science,  and  Dean  of  Kxtension  Lecture  Department  College  of    ocial  Science 
President  National  League  for  Promoting   Public  Ownership  of  Monopolies;    Member 
International  Co-Operative  Union,  American   Social  Science  Association,  and 
National  Institute  of  Art,  Science  and  Letters ;  Author  of  f  The  World's 
Best  Books,"   "The  Power  of  the  Ideal,"   "The  New  Political 
Economy,"   "  The  Telegraph   Monopoly "    Chapters  in 
"Municipal  Monopolies"  of  the  Ely  Economic 
Series,    etc.,   etc. 


No  Copyright. 

On  the  contrary,  an  invitation  is  extended  to  all  to  do  their  utmost 
in  every  way  to  spread  the  truths  contained  in  the  following  pages. 
Newspapers'and 'magazines  are  at  liberty  to  quote  as  freely  as  they  will, 
due  credironly  being  asked. 


PUBLISHT  BY 

C.     F.     TAYLOR 

1520XHESTNUT  STREET,  PHILADELPHIA,  PA. 


CD  1^ 


Lan- 
guage is 
a  growth  rather 
than  a  creation.     The 
growth   in  our  vocabulary 
is  seen  in  the  vast  increase  in  size 
of  our  dictionaries  during  the  past  cen- 
tury.   This  growth  is  not  only  in  amount,  but 
among  other  elements  of  growth  the  written  forms 
of  words  are  becoming  simpler  and  more  uniform.     For 
example,  compare  English  spelling  of  a  century  or  two  cen- 
turies ago  with  that  of  to-day !    It  is  our  duty  to  encourage  and  ad- 
vance the  movement  toward  simple,  uniform  and  rational  spelling.    See  the 
.recommendations  of  the  Philological  Society  of  London,  and  of  the  American 
Fhi^oicgical  Association,  and  list  ot   amended  spellings,  publisht    in  the    Century 
Dictionary  (fallowing  the  letter  z),  and  also  in  the  Standard  Dictionary,  Webster's  Die-  ^ 
tionary,  and  other  authoritative  works  on  language.    The  tendency  is  to  drop  silent  letters  in 
.bwre  of  die  mott  flagrant  instances,  as  ugh  from  though,  etc.,  change  ed  to  t  in  most  places  where 
o  pronounced  (where  ittloes  not  affect  the  preceding  sound),  etc. 

The  National  Educational  Association,  consisting  of  ten  thousand  teachers,  recom- 
mend the  following : 

"At  a  meeting  of  the  Board  of  Directors  of  the  N.  E.  A.  held  in  Washington,  D.  C., 
July  7,  1898,  the  action  of  the  Department  of  Superintendence  was  approved,  and  the  list 
of  words  with  simplified  spelling  adopted  for  use  in  all  publications  of  the  N.  E.  A. 
as  follows : 

tho  (though);  program  (programme); 

altho  (although);  catalog  (catalogue); 

thoro  (thorough);  prolog  (prologue); 

thorofare  (thoroughfare);  decalog  (decalogue); 

thru  (through);  demagog  (demagogue); 

thruout  (throughout);  pedagog  (pedagogue). 

"You  are  invited  to  extend  notice  of  this  action  and  to  join  in  securing  the  general 

adoption  of  the  suggested  amendments— IRWIN    SHEPARD,     Sec'y." 

The  publisher  of  this  Series  feels  it  a  duty  to  recognize 

the  above  tendency,  and  to  adopt  it  in  a 

reasonable  degree. 


Chapter  III. 
HOME  RULE  FOR  CITIES. 

THE    BONDAGE    OF    CITIES    MUST    CEASE. 

Our  Jaw  classes  cities  with  women  as  having  no  right  to  self- 
government — a  fact  which  may  be  regarded  as  affording  legal 
grounds  for  the  custom  of  calling  a  city  "she."  A  few  illus- 
trations will  show  how  absolutely  cities  and  towns  are  sub- 
jected to  the  control  of  the  state  legislature. 

1.  One  of  the  strongest  illustrations  of  the  severe  State 
paternalism  to  which  our  cities  are  subject  is  the  fact  that  a 
city  of  half  a  million  people  cannot  connect  two  of  its  own 
public  buildings  with  an  electric  wire,  the  city  being  unable 
to  obtain  legislative  permission  against  the  opposition  of  the 
electric  companies.  Boston  is  the  city  of  which  I  am  speak- 
ing. A  little  while  ago  she  wished  to  run  a  wire  from  the 
City  Hall  to  the  Old  Court  House,  either  over  or  under  the 
little  back  street  50  or  60  feet  wide  that  lies  between  the  two 
buildings.  The  object  was  to  enable  the  city  to  light  the  Old 
Court  House  from  the  dynamo  in  City  Hall.  A  bill  was  in- 
troduced for  the  purpose,  accompanied  by  petition  of  the 
mayor  of  Boston  (House  Bill  No.  747,  1898),  but  the  electric 
companies  did  not  wish  municipalities  to  use  a  dynamo  in  a 
public  building  to  operate  lights  outside  of  the  building,  and 
the  Legislature  refused  to  pass  the  bill,  and  Boston  cannot  run 
a  wire  between  two  of  her  own  buildings  over  or  under  her 
own  street. 

A  municipality  has  no  independent  initiative  of  its  own,  and 
it  is  the  only  human  thing  in  America  that  hasn't  got  it.  The 
nation  has  a  right  of  independent  initiative  in  national  affairs, 
the  state  in  state  affairs,  and  the  individual  in  individual  affairs, 
but  the  municipality  must  have  permission  from  the  legis- 
lature for  everything  it  does.1    If  Portland  wants  to  establish 

1  It  is  bad  enough  to  hold  life  as  a  tenant  at  will,  but  even  that  might 
be  endurable  if  the  ciiy  were  allowed  to  have  the  attributes  of  a  living  being 
while  entrustgd  with  existence.  But,  to  have  no  power  of  self  activity;  to 
be  required  to  get  permission  to  move  /—that  is  unbearable. 

387 

46&0G4 


S8& 


THE   BONDAGE   OF   CITIES 


a  gas  plant,  she  must  consult  witn  Augusta,  and  Bangor  and 
Dickey ville,  and  all  the  other  towns  and  cities  in  the  state, 
and  get  the  consent  of  their  representatives  in  the  legislature. 
If  Salem,  learning  of  the  great  success  of  municipal  telephone 
exchanges  in  other  countries,  desires  to  build  such  a  system 
for  herself,  she  must  ask  authority  of  a  lot  of  men  from  Bos- 
ton, Worcester,  Springfield,  Osterville,  Lenox,  etc.,  who 
mostly  know  nothing  about  Salem,  or  municipal  telephones 
and  are  much  more  apt  to  feel  an  interest  in  the  Bell  Tele- 
phone Company  than  in  a  municipal  exchange  in  Salem. 
When  Syracuse  wants  to  build  an  electric  light  plant,  or  a  sub- 
way, she  must  ask  permission  from  a  body  of  men  representing 
Albany,  Buffalo,  Rochester,  New  York,  Brooklyn,  Birming- 
ham, Rynex's  Comers,  Smith's  Mills,  Phillips  Creek,  Pool- 
ville,  and  all  the  other  3,000  cities  and  towns  of  the  state,  and 
representing  also,  even  more  accurately  perhaps,  a  large  num- 
ber of  powerful  corporations,  whose  interest  it  is  to  do  all  in 
their  power  to  prevent  Syracuse  or  any  other  city  or  town 
from  establishing  a  municipal  lighting  plant,  or  taking  any 
steps  in  the  direction  of  a  municipal  street  railway.  Such 
undertakings  are  clearly  beyond  the  individual  sphere.  Each 
individual  cannot  build  a  street  railway,  or  a  telephone  system 
for  himself.  And  they  are  not  'state  interests.  Albany  and 
Buffalo  have  nothing  like  a  common  interest  with  Rochester 
in  the  water,  gas,  electric  light,  or  telephone  system  of  Roches- 
ter, and  should  have  nothing  like  equal  powers  of  decision  in 
respect  to  the  Rochester  gas  works,  or  telephone  plant;  yet, 
under  the  present  system,  Buffalo  and  Albany  have  more  to 
say  as  to  what  shall  be  done  with  Rochester  telephones  and 
gas  pipes  than  Rochester  herself.  Yet  the  interest  is  dis- 
tinctly local,  and  the  final  power  of  decision  and  right  of  con- 
trol should  be  local,  subject  only  to  broad  general  pro- 
visions, to  give  the  people  a  firm  grasp  of  the  city  government, 
and  secure  deliberation,  harmony  and  just  dealing. 

2.  The  legislature  has  such  power  over  municipalities  that 
it  can  plan  and  construct  the  public  buildings  of  a  city  without 
reference  to  the  wishes  of  the  citizens,  and  then  compel  them 
to  pay  for  the  work.     In  1870,  the  legislature  of  Pennsylvania 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  389 

arrived  at  the  conclusion  that  Philadelphia  should  have  a  new 
city  hall;  so  it  passed  an  act  to  that  effect,  naming  certain  gen- 
tlemen as  commissioners  to  erect  the  building,  with  absolute 
power  to  create  debts  for  that  purpose,  and  require  the  levy  of 
taxes  on  the  city  for  their  payment.  The  act  was  held  consti- 
tutional,1 and  for  about  a  quarter  of  a  century  the  people  of 
Philadelphia  have  been  paying  enormous  sums,  millions  more 
than  the  buildings  were  fairly  worth,  for  work  they  did  not  au- 
thorize, and  over  which  they  have  had  no  control,  altho  it  con- 
sisted simply  of  the  construction  of  municipal  buildings  for 
their  own  city — a  remarkable  example  of  the  intense  patern- 
alism (to  use  the  mildest  word  that  suggests  itself)  to  which 
the  law  subjects  municipalities.  It  would  be  deemed  a  very 
strange  thing  for  the  legislature  to  say  to  an  individual  citizen: 
"Mr.  Smith,  your  old  brick  house  is  getting  a  trifle  small  for 
"you  and  your  servants,  and  isn't  very  handsome  anyway ;  you 
"are  able  to  build  a  palatial  marble  dwelling,  and  I  guess  we'd 
"better  have  it  done.  I'll  plan  the  thing,  and  see  it  con- 
structed to  suit  my  taste,  and  you  can  pay  for  it,  as  you  are 
"the  one  who  will  have  to  live  in  it."  The  courts  would  not 
allow  the  legislature  to  act  in  this  way  toward  a  single  indi- 
vidual, but  a  million  individuals  who  constitute  a  city  must  be 
left,  in  such  a  case,  entirely  at  the  legislative  mercy. 

3.  Another  proof  of  municipal  infancy  is  the  fact  that  the 
legislature  may  compel  a  city  or  town  to  pay  a  claim  made 
against  it,  altho  such  claim  has  been  denied  by  the  courts  and 
may  have  no  foundation  in  law  or  justice.2  If  the  legisla- 
ture ordered  Mr.  Smith  to  pay  Mr.  Jones  the  amount  of  a 
claim  made  by  Jones  upon  Smith,  which  had  been  tried  in  the 
courts  and  rejected,  or  if  the  legislature  should  order  the 
Boston  &  Albany,  or  the  Pennsylvania  Railroad,  or  the 
Adams  Express  to  pay  such  a  claim,  the  courts  would  unhesi- 
tatingly declare  the  act  unconstitutional;  but  a  million  men 
in  a  public  corporation  have  almost  no  rights  which  the  legis- 
lature is  bound  to  respect. 

P)  Peridns  v.  Slack,  86  Pa.  270  (1878). 

C2)  13  N.  Y.  143.  If  the  claim  wore  manifestly  without  any  foundation, 
lofral  or  moral,  the  legislative  order  might  be  held  void  ns  amounting  to  taxa- 
tion for  private  purposes  (see  G4  N.  Y.  92,  99).  But,  if  the  baselessness  of  the 
claim  does  not  appear  clearly  on  the  face  of  the  facts  before  the  court,  the 
legislative   order   will   stand. 


390 


MUNICIPAL  LIBERTY. 


4.  It  is  held  that  the  legislature  may  take  city  water  works, 
or  gas  works,  or  other  municipal  properties  entirely  out  of  the 
hands  of  the  city,  and  give  the  management  of  them  to  state 
officers.1 

5.  A  franchise  granted  by  the  legislature  to  a  city  or  town 
is  not  a  contract.  A  franchise  to  establish,  own  and  operate 
ferries,  water  works,  gas  works,  electric  plants,  street  railways, 
etc.,  is  a  franchise  if  granted  to  an  association  of  stockholders 
constituting  a  private  corporation,  and  is  protected  by  the 
Federal  Constitution,  but  is  not  a  franchise  if  granted  to  an 
association  of  individuals  constituting  a  city,  and  is  not  pro- 
tected by  the  constitution,  or  anything  else,  but  may  be  taken 
without  compensation  at  the  pleasure  of  the  legislature.2 

6.  The  charter  of  a  private  corporation  is  held  to  be  a  con- 
tract within  the  constitution,  but  the  charter  of  a  public  cor- 
poration is  not.  Municipal  corporations  are  creatures  of  the 
legislature.  They  have  only  such  powers  as  may  be  given  to 
them  by  the  legislature,  which  may,  at  its  pleasure,  alter, 
abridge  or  annul  their  powers  and  privileges,  divide  them,  or 
consolidate  two  or  more  of  them  into  one  without  their  assent, 
attach  a  condition  to  their  continued  existence,  or  abolish  them 
completely.3  Imagine  Congress  passing  an  act  to  annex 
Rhode  Island  to  Connecticut,  or  divide  ]STew  York  state,  or 
declare  that  Illinois  shall  no  longer  be  a  state!  Yet  such  an 
act  enforced  without  the  assent  of  the  states  affected  would  be 
an  apt  parallel  to  the  arbitrary  powers  possessed  and  exercised 
by  many  of  our  legislatures  in  respect  to  cities. 

These  illustrations  of  municipal  dependence  seem  sufficient 
to  justify  the  conclusion  that  our  cities  are  in  bondage — sub- 


(J)  44  Oh.  St.  348;  7  Houst.  (Del.)  44;  some  courts  hold  otherwise— see 
below. 

(2;  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  (U.  S.)  511.  Legisla- 
tive act  taking  away  the  Hartford  ferry  justified  on  the  broad  ground  that 
the  grant  of  a  franchise  to  a  municipality  is  not  a  contract.  See  also  77  Va. 
214,  and  compare  10  Barb.  (N.  Y.)  223. 

(-)  See  102  U.  S.  472,  511;  93  U.  S.  266;  4  Wheat.  518;  74  N.  Y.  161,  166; 
and  Judge  Dillon's  famous  legal  text  book  on  Municipal  Corporations,  §§54, 
64,  85.  89.— the  highest  authority  on  the  subject. 

A  municipality  Is  not  only  a  creature  of  enumerated  powers,  but  those 
powers  are  for  the  most  part  strictly  construed.  It  Is  held  tliat  a  munlclpaf 
corporation  can  exerciae  no  powers  except  those  granted  to  it  In  express 
words,  or  necessarily  or  fairly  implied  in  or  incident  to  the  powers  ex- 
pressed, or  indispensable  to  the  declared  objects  and  purposes  of  the  cor- 
poration,  and  "any  reasonable  doubt  concerning  the  existence  of  the  power 
is  resolved  by  the  courts  against  the  municipal  corporation,  and  the  power 
la  denied."     Von  Schmidt  v.  Widber,  105  Cal.  151,  157. 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       391 

ject  to  external  control  in  regard  to  matters  which  they  ought 
to  have  a  right  to  decide  for  themselves.  A  state  legislature 
has  no  more  right  to  impose  its  judgment  upon  a  city  in  respect 
to  the  local  business  affairs  of  that  city  than  the  Federal  Gov- 
ernment has  to  impose  its  judgment  upon  a  particular  state  in 
regard  to  the  local  affairs  of  that  state.  There  is  no  more 
sense  or  justice  in  requiring  Baltimore  to  consult  all  the  cities 
and  towns  of  the  state  as  to  what  she  shall  do  with  her  street 
railways  than  there  would  be  in  requiring  Mrs.  Deland  to  con- 
sult all  the  women  in  Boston  and  get  permission  before  she 
puts  new  paper  on  her  hallways,  or  makes  any  other  change 
in  her  housekeeping. 

THE  REASONS  FOR  ALL  THIS. 

The  reason  sometimes  given  for  the  legislative  power  of 
strangling  a  municipality  is  that  it  was  created  by  the  legisla- 
ture, and  as  the  breath  of  life  was  breathed  into  it  by  the  state 
authorities  they  have  the  right  to  withdraw  the  said  breath  at 
their  pleasure.  On  similar  grounds  a  parent  would  have  a 
right  to  murder  his  child,  and  we  should  go  back  to  the 
Roman  plan  of  placing  the  power  of  life  and  death  in  the  head 
of  the  family.  Moreover,  private  corporations,  as  well  as 
public,  are  created  by  the  legislature  and  if  creation  confers 
a  right  of  limitless  modification  even  to  dissolution  in  the  one 
case,  why  not  in  the  other?  Finally,  cities  and  towns  are  not 
created  by  the  legislature.  They  may  exist  and  frequently 
have  existed  without  any  legislature,  and  before  there  was  any 
legislature.  Their  existence  gives  them  the  right  of  local 
self  government.  People  living  together  in  the  same  locality 
have  a  right  to  associate  themselves  for  the  accomplishment  of 
common  purposes,  and  to  control  their  local  affairs  without 
■dictation  from  distant  cities  and  without  permission  from  any 
legislature.  The  legislature  may  use  cities  and  towns  to  ac- 
complish state  purposes,  and  in  that  relation  may  properly 
mold  their  governments  and  functions;  but  it  has  no  more 
right  to  deprive  them  of  freedom  and  self  control  in  local  mat- 
ters than  congress  has  to  deprive  a  state  of  its  freedom  and 
self  control  in  internal  concerns. 


392  THE   CITY    FOR   THE    PEOPLE. 

The  real  reason  for  the  present  state  of  municipal  law 
appears  to  be  a  failure  of  the  law  so  far  to  embody  in  its  phil- 
osophy, with  sufficient  fullness  and  precision,  the  fundamental 
distinction  between  the  functions  of  cities  and  towns  as  state 
agencies  for  enforcing  state  laws,  and  their  functions  as  local 
business  concerns.  When  the  principles  of  the  Common  Law 
were  crystalizing,  the  functions  of  municipalities  were  almost 
entirely  confined  to  the  first  class,  and  the  doctrine  naturally 
grew  up  that  municipalities  were  merely  creatures  of  the  state, 
doing  a  part  of  the  state's  work,  and  subject  entirely  to  the 
state's  orders — a  doctrine  fairly  reasonable  as  long  as  muni- 
cipal functions  were  confined  to  keeping  order,  administering 
justice,  attending  to  education  and  other  state  interests,  but 
wholly  inappropriate  in  reference  to  the  ownership  and  man- 
agement of  water  works,  gas  works,  electric  light  works,  street 
railway  systems,  lodging  houses,  wharves,,  ferries,  printing 
establishments,  telephone  exchanges,  baths,  and  other  local 
business  enterprises  that  have  crept  into  the  municipal  field. 
The  precedent-loving  law  has  clung  to  the  rule  of  former 
times,  bending  a  little  in  the  strong  hands  of  two  or  three 
liberal  courts,  but  with  no  due  regard  as  a  rule  for  the  modi- 
fication required  by  the  changes  of  modern  life. 

"We  may  set  it  down  as  a  reasonably  certain  conclusion,  I 
think,  that  the  sweeping  subjection  of  cities  to  legislative 
authority  that  characterizes  our  law  appears  to  arise  from 
the  failure  to  distinguish  between  the  two  spheres  of  municipal 
activity.  So  far  as  the  municipality  is  an  agent  of  the  state 
to  carry  out  state  policy  in  respect  to  state  interests,  such  as 
education,  order,  administration  of  justice,  protection  from 
disease,  etc.,  large  control  by  the  legislature  is  right;  but  so 
far  as  the  municipality  is  a  local  co-operative  business 
concern,  the  legislature  should  have  no  more  power  over  it 
than  it  has  over  any  other  individuals  or  corporations  engaged 
in  similar  business. 

LIMITATIONS  ON  THE  LEGISLATURE. 

In  spite  of  the  law's  rigidity,  and  the  powerful  trend  in  the 
past  toward  state  absolutism  in  municipal  affairs,  some  notches 
have  been  cut  in  this  legislative  omnipotence. 


HOME   RULE   FOR   OUR   CITIES.  39S 

1.  Taxation  must  be  for  a  public  purpose,  and  one  that  per- 
tains to  the  district  taxed. 

2.  The  legislature  cannot  deprive  a  city  of  the  use  of  ite 
private  property,  such  as  water  works,  gas  plants,  etc.  Even 
if  a  city  or  town  is  abolished,  such  property  rights  are  not  de- 
stroyed but  go  to  the  state  in  trust  for  the  inhabitants  of  the 
municipal  area.  The  management  of  the  property  may  be- 
taken away,  but  not  the  use  of  it. 

3.  A  few  courts  hold  that  the  legislature  cannot  take  away 
the  management  of  "private"  property  from  the  municipality,, 
there  being  an  inherent  right  to  local  management  and  control 
of  local  business,  and  local  selection  of  the  officers  who  are  to 
administer  such  business. 

Inherent  Right  of  Local  Self-government. 

In  People  v.  Hurlbut,  24  Mich.  44  (1871).  Chief  Justice  Campbell 
and  Justices  Cooley  and  Christiancy  held  that  the  legislature  could 
not  appoint  a  board  of  public  works  to  control  the  public  building's, 
pavements,  sewers,  water  works,  engine  houses,  etc.,  in  the  city  of 
Detroit,  altho  no  express  provision  of  the  constitution  neg-atived 
the  act.  The  court  held  that  there  is  "a  clear  distinction  between 
"what  concerns  the  state  and  that  which  does  not  concern  more- 
"than  one  locality." 

A  municipal  government  has  two  sets  of  functions.  It  is  a  state- 
agency  to  attend  to  state  affairs  in  its  locality,  and  it  is  a  municipal 
agency  to  attend  to  business  of  a  local  nature,  such  as  water  worksr 
fire  service,  etc.  In  its  sphere  of  state  agency,  the  legislature  may- 
control  it  except  where  express  constitutional  provisions  may  inter- 
vene. But  the  people  of  a  city  or  town  have  a  right  to  the  manage- 
ment of  their  local  concerns,  and  the  selection  of  their  local  officers- 
who  are  to  control  such  concerns,  and  this  right  cannot  be  taken 
from  them  by  the  legislature,  for  it  rests  upon  the  principle  of 
self-government,  which  is  inherent  in  free  institutions,  and  un- 
derlies the  constitution  as  the  purpose  for  which  the  constitution 
was  established. 

Chief  Justice  Campbell  and  Justices  Cooley  and  Christiancy  gave* 
the  matter  great  consideration  and  rendered  separate  opinions  all 
based  upon  the  principle  that  local  self-government  of  local  affairs- 
is  an  essential  part  of  our  system.  "The  history  of  the  country 
"and  the  nature  of  our  institutions"  show  "the  vital  importance- 
"which  in  all  the  states  has  so  long-  been  attached  to  local  muni- 
cipal governments  by  the  people  of  such  localities,  and  their  rig-hts> 
"of  self-government." 

Chief  Justice  Campbell  distinguishes  People  v.  Mahaney,  13  Mich- 
492,  where  the  validity  of  an  act  establishing  state  control  of  city 


394  THE   BONDAGE    OF    CITIES 

police  is  sustained,  saying  the  question  was  "whether  the  police 
"board  is  a  state  or  municipal  agency,"  and  added,  "I  think  it  is 

"clearly  an  agency  of  the  state  government There  is  a 

""clear  distinction  in  principle  between  what  concerns  the  state  and 

"that  which  does  not  concern  more  than  one  locality There 

"is  no  dispute  concerning  the  character  of  the  public  works  act. 
"Its  purposes  are  directly  and  evidently  local  and  municipal."  He 
decided  that  the  municipality  could  not  be  deprived  of  the  right 
to  choose  the  men  who  should  manage  its  public  works.  "Our  con- 
stitution," he  said,  "cannot  be  understood  or  carried  out  at  all, 

"except  on  the  theory  of  local  self-government The 

"confusion  existing  on  this  subject  has  arisen  from  the  custom 
"prevalent  under  all  free  governments  of  localizing  all  matters  of 
"public  management  as  far  as  possible,  and  of  making  use  of  local 
"corporate  agencies  whenever  it  can  be  done  profitably,  not  only 
""in  local  government,  but  also  for  purposes  of  state."  (pp.  81,  84, 
•89.) 

Judge  Cooley  made  an  extensive  review  of  the  pertinent  historic 
facts  and  general  principles,  and  concluded  against  the  "legislative 
"power  to  appoint  for  municipalities  the  officers  who  are  to  manage 
"the  property,  interests  and  rights  in  which  their  own  people  are 
"alone  concerned.  The  municipality  as  an  agent  of  government,  is 
"one  thing;  the  corporation  as  an  owner  of  property  is,  in  some 
"particulars,  to  be  regarded  in  a  very  different  light.  .  .  In  the 
"case  before  us,  the  offices  in  question  involve  the  custody,  care, 
"management  and  control  of  the  pavements,  sewers,  water  works, 
"and  public  buildings  of  the  city,  and  the  duties  are  purely  local. 
"The  state  at  large  may  have  an  interest  in  an  intelligent,  honest, 
"upright,  and  prompt  discharge  of  them,  but  this  is  on  commercial 
"and  neighborhood  grounds,  rather  than  political."  (pp.  103,  104, 
105.) 

In  Board  of  Park  Commissioners  v.  Detroit,  28  Mich.  228  (1873), 
where  the  legislature  appointed  state  officers  to  buy  land  and  im- 
prove it  for  a  park  for,  and  at  the  expense  of,  the  city  of  Detroit, 
Judge  Cooley  said:  "We  affirm  that  the  city  of  Detroit  has  the 
"right  to  decide  for  itself  upon  the  purchase  of  a  public  park.  .  .  . 
"It  is  as  easy  to  justify,  on  principle,  a  law  which  permits  the  rest 
"of  the  community  to  dictate  to  an  individual  what  he  shall  eat, 
"and  what  he  shall  drink,  and  what  he  shall  wear,  as  to  show  any 
"constitutional  basis  for  one  under  which  the  people  of  other  parts 
"of  the  state  dictate  to  the  city  of  Detroit  what  fountains  shall  be 
"erected  at  its  expense  for  the  use  of  its  citizens,  or  at  what  cost 
"it  shall  purchase,  and  how  it  shall  improve  and  embellish,  a  park 
"or  boulevard  for  the  recreation  and  enjoyment  of  its  citizens." 
<Pp.  241,  242.) 

A  passage  from  the  opinion  of  the  same  judge  in  the  former  case, 
24  Mich,  at  97,  is  interesting  in  connection  with  the  last  quotation. 
"The  doctrine,"  says  the  learned  judge,  "that  within  any  general 
^'grant  of  legislative  power  by  the  constitution  there  can  be  found 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  395 


^authority  thus  to  take  from  the  people  the  management  of  their 
"local  concerns,  and  the  choice,  directly  or  indirectly,  of  their  local 
"officers,  if  practically  asserted,  would  be  somewhat  startling-  to  our 
""people,  and  would  be  likely  to  lead  hereafter  to  a  more  careful 
"scrutiny  of  the  charters  of  government  framed  by  them  lest  some- 
"time,  by  an  inadvertent  use  of  words,  they  might  be  found  to  have 
"conferred  upon  some  agency  of  their  own,  the  legal  authority  to 
"take  away  their  liberties  altogether." 

The  Michigan  constitution  says,  Art.  XV,  §14,  that  "judicial 
"officers  of  cities  and  villages  shall  be  elected,  and  all  other  officers 
"shall  be  elected  or  appointed,  at  such  time  and  in  such  manner, 
"as  the  legislature  may  direct,"  but  the  Michigan  judges  hold  that 
in  the  light  of  history  and  fundamental  principle,  the  election  or 
appointment  of  municipal  officers  proper  must  be  by  local  authority 
in  such  time  and  manner  as  the  legislature  may  direct. 

In  State  v.  Denny,  118  Ind.  382  (1888),  an  act  creating  a  board  of 
public  works  to  be  appointed  by  the  legislature,  and  to  have  con- 
trol over  streets,  alleys,  sewers,  water  works  and  lights,  was  held 
invalid  as  infringing  the  right  of  local  self-government  inherent  in 
municipal  corporations  under  our  system  of  free  institutions.  The 
right  of  local  self-government  ante-dated  the  constitution,  and  was 
not  surrendered  by  it.  Judge  Coffey,  citing  Cooley  on  Constitu- 
tional Limitations,  5th  ed.,  page  208,  says: 

"It  does  not  follow  that  in  every  case  the  courts,  before  they 
"can  set  aside  a  law  as  invalid,  must  be  able  to  find  in  the  consti- 
tution some  specific  inhibition  which  has  been  disregarded 

"If  the  authority  to  do  an  act  has  not  been  granted  by  the  sover- 
eign to  its  representatives,  it  cannot  be  necessary  to  prohibit  its 
"'being  done"  (pp.  394-395).  The  Court  continues:  "The  constitu- 
tion must  be  considered  in  the  light  of  the  local  and  state  govern- 

"ments  existing  at  the  time  of  its  adoption The  principles 

"of  local  self-government  constitute  a  prominent  feature  in  both 
""the  federal  and  state  governments.  ...  It  existed  before  the 
"creation  of  any  of  our  constitutions,  national  or  state,  and  all  of 
"them  must  be  deemed,  to  have  been  formed  in   reference  to   it, 

""whether  expressly  recognized  in  them  or  not The  object 

"'of  granting  to  the  people  of  a  city  municipal  powers  is  to  give 
"them  additional  rights  and  powers  to  better  enable  them  to  govern 
"'themselves,  and  not  to  take  away  any  rights  they  possessed  before 
"'such  grant  was  made.  It  may  be  true  that  as  to  such  matters  as 
•"the  state  has  a  peculiar  interest  in,  differing  from  that  relating 
"'to  other  communities,  it  may,  by  proper  legislative  action,  take 
"'control  of  such  interests;  but,  as  to  such  matters  as  are  purely 
"'local,  and  concern  only  the  people  of  that  community,  they  have 
"'the  right  to  control  them  subject  only  to  the  general  laws  of  the 
"'state,  which  affect  all  the  people  of  the  state  alike.  The  construc- 
tion of  sewers  in  a  city,  the  supply  of  gas,  water,  fire  protection, 
"'and  many  other  matters  that  might  be  mentioned,  are  matters  in 
"which  the  local  community  alone  are  concerned,  and  in  which  the 

i 


396  MUNICIPAL  LIBERTY. 

"state  has  no  special  interest  more  than  it  has  in  the  health  and 
"prosperity  of  the  people  generally,  and  they  are  matters  over 
"which  the  people  affected  thereby  have  the  exclusive  control,  and 
"it  cannot,  in  our  opinion,  be  taken  away  from  them  by  the  legis- 
lature." 

In  Evansville  v.  State,  118  Ind.  426  (1888),  it  was  held  that  an 
act  placing"  the  police  and  fire  departments  of  certain  cities,  and 
the  property  connected  therewith,  under  the  exclusive  control  of 
State  commissioners  was  void  as  a  denial  of  the  right  of  local  self- 
government.  The  court  says  that  securing  an  efficient  police 
department  is  a  State  purpose,  but  the  remainder  of  the  act  affected 
purely  local  concerns  (p.  437). 

This  Michigan  doctrine  of  the  inherent  right  of  local  selec- 
tion of  officers  and  management  of  property  guarantees  self- 
government  within  the  sphere  of  local  business  permitted  by 
the  charter,  but  the  charter  itself  is  subject  to  limitation  or  re- 
peal at  the  will  of  the  legislature,  and  there  is  at  best  no  power 
of  initiating  a  business  or  policy  beyond  the  foreordained  enu- 
merations and  permissions  of  the  charter.  Moreover,  the 
courts  that  take  this  position  are  few.  The  great  majority 
hold,  with  Ohio  and  Delaware,  that  the  legislature  may  take 
city  property  out  of  the  hands  of  the  city,  and  give  its  control 
to  state  officials.1 


(*)  The  reasoning  by  which  this  course  Is  sustained  Is  well  expressed  In 
148  Mass.  375.  at  383-6.  "It  Is  suggested,  tho  not  much  Insisted  on,  that  the 
statute  of  1885,  c.  323,  is  unconstitutional,  because  it  takes  from  the  city 
the  power  of  self-government  in  matters  of  internal  policy.  We  find  no 
provision  in  the  constitution  with  which  it  conflicts,  and  we  cannot  declare 
an  act  of  the  legislature  invalid  because  It  abridges  the  exercise  of  the 
privilege  of  local  self-government  in  a  particular  in  regard  to  which  such 
privilege  is  not  guaranteed  by  any  provision  of  the  constitution." 

The  court  then  referred  to  constitutional  provisions  to  make  "wholesome 
regulations,"  etc.,  and  to  "erect  municipalities"  and  "grant  powers,"  etc. 
The  constitution  did  not  say  the  legislature  could  take  away  powers  once 
granted,  but  this  was  held  to  be  the  case  by  the  court  which  continued  as 
follows: 

"Under  these  provisions,"  as  is  said  by  C.  J.  Chapman:  'There  can  be  no 
doubt  that  the  power  to  create,  change  and  destroy  municipal  corporations  is 
In  the  legislature.  This  power  has  been  so  Jong  and  so  frequently  exercised  nion 
counties,  towns  and  school  districts,  in  dividing  them,  altering  their  boundary 
lines,  increasing  and  diminishing  their  powers,  and  in  abolishing  some  of 
them,  that  no  authorities  need  be  cited  on  this  point.  The  constitution  does 
not  establish  these  corporations,  but  vests  in  the  legislature  a  general  juris- 
diction over  the  subject  by  its  grant  of  power  to  make  wholesome  laws,  as  it 
shall  judge  to  be  for  the  general  good  and  welfare  of  the  commonwealth.' 
It  'may  amend  these  charters,  enlarge  or  diminish  their  powers,  extend  or 
limit  their  boundaries,  consolidate  two  or  more  into  one,  and  abolish  tliem 
altogether,  at  its  own  discretion.'  " 

"We  have  no  doubt  that  the  legislature  has  the  right  in  its  discretion  to 
"change  the  powers  and  duties  created  by  itself,  and  to  vest  such  powers  and 
"duties  in  officers  appointed  by  the  governor,  *  *  *  instead  of  leaving 
"such  officers  to  be  elected  by  the  people,  or  appointed  by  the  municipal 
"authorities." 

The  law  under  consideration  In  this  case  established  a  state  police  for 
Boston,  and  so  was  not  within  the  limits  of  the  Michigan  and  Indiana 
decisions,  but  the  reason  covered  the  whole  field,  and  is  often  referred  to  as 
authority  against  the  Michigan  doctrine. 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       397 

4.  In  some  states,  constitutional  provisions  have  been 
adopted  securing  more  or  less  municipal  freedom  as  a  right; 
and,  as  a  matter  of  fact  our  legislatures  accord  municipalities 
a  considerable  degree  of  self-control,  tho  only  as  a  courtesy, 
subject  to  recall  at  the  pleasure  of  the  legislature  except  where 
the  Michigan  Doctrine  or  the  constitutional  provisions  just 
mentioned,  interfere  with  State  absolutism.  (See  diagrams 
below,  Tables  I  and  II.) 

THE  GENERAL  SITUATION. 

Summing  up  the  situation  it  appears  to  be  as  follows: 

1.  Cities  have  no  independent  initiative  of  their  own.  They 
belong  to  the  dependent  and  defective  classes. 

2.  They  have  as  a  rule  no  recognized  right  to  choose  their 
own  officers. 

3.  They  have  as  a  rule  no  recognized  right  to  control  and 
manage  their  own  property. 

4.  They  have  no  recognized  right  to  continued  existence — 
no  recognized  right  to  life,  liberty,  or  the  pursuit  of  happiness. 

5.  Neither  a  franchise  grant,  nor  the  charter  as  a  whole,  is 
regarded  as  a  contract,  or  within  the  protection  of  the  Federal 
Constitution. 

6.  Cities  cannot  be  taxed  except  for  a  public  purpose,  and 
one  that  pertains  to  the  district  taxed. 

7.  The  people  in  the  municipal  area  have  a  right  to  the  use 
of  the  business  property  of  the  municipality,  and  perhaps  of 
its  public  property  also. 

8.  Some  courts  recognize  an  inherent  right  In  municipali- 
ties to  control  their  business  property  and  manage  their  local 
affairs,  and  elect  their  own  officers  to  exercise  such  control  and 
management. 

9.  In  fact,  considerable  local  self-control  exists  by  legisla- 
tive permission  as  a  revocable  courtesy. 

10.  In  some  states,  the  prevailing  rules  of  law  as  to  muni- 
cipal subjection  have  been  altered  by  constitutional  provisions, 
and  there  is  a  strong  movement  of  thought  in  favor  of  such 
modification.     (See  diagrams  and  explanation.") 


398  THE    CITY    FOR    THE    PEOPLE. 

CONSEQUENCES  OF  MUNICIPAL  DEPENDENCE. 

Some  of  the  consequences  of  the  present  condition  of  muni- 
cipal law  are: — 

First.  A  chaotic  mass  of  legislation  and  decisions,  mighty 
in  bulk,  complexity  and  conflict  of  opinion,  but  weak  in  the 
definite  simplicity,  uniform  interpretation,  and  steady  har- 
mony with  fundamental  principles  that  characterize  the  per- 
fect law. 

Second.  An  eternal  running  to  the  legislature  for  special 
legislation.  •  Turning  to  a  pile  of  notes  on  special  laws,  the 
first  sheets  I  pick  up  contain  a  list  of  twenty  acts  passed  by 
the  Virginia  legislature  in  one  year  to  authorize  the  building 
of  wharves  by  persons  named  in  the  acts.  Here  are  a  few 
specimens.     They  are  all  substantially  alike. 

Major  W.  Pilchard  to  erect  a  wharf  at  Greenbackville. 

C.  W.  Warner  allowed  to  erect  a  wharf. 

Tomlin  Braxton  to  erect  a  wharf  in  King"  William. 

R.  H.  Atkerson  to  erect  a  wharf  on  Chuckatuck  Creek,  etc. 

Taking  another  random  handful  of  papers,  I  find  a  mass  of 
local  laws  enacted  in  Mass.  in  1896,  '97  and  '93.  Look  in  the 
index  of  any  Mass.  blue  book  under  the  titles  "Cities"  and 
"Towns"  and  you  will  find  materials  enough  for  a  lengthy  ser- 
mon on  special  legislation.  In  1896,  there  were  49  special 
acts  relating  to  street  railways  in  5  cities  and  44  towns,  and  25 
acts  about  water,  8  relating  to  cities  and  17  to  towns.  Those 
are  only  two  items.  In  1897,  there  were  130  entries  under 
Cities,  only  7  of  them  general  laws.  In  1898  there  were  255 
entries  under  "Cities"  and  "Towns"  and  only  18  of  them  re- 
ferred to  general  laws.  A  considerable  number  of  the  special 
acts  relate  to  municipal  water  works,  and  another  large  group 
consists  of  acts  permitting  some  railway  to  lay  its  tracks  in  some 
town  or  city.  Here  are  a  few  examples  of  what  Mass.  can  do 
in  the  way  of  special  legislation : — 

Barre,  the  Barre  St.  By.  Co.  may  lay  its  tracks  and  operate  its 
railway  in, 

Belchertown  may  accept  a  certain  bequest. 

Berkley,  water  supply. 

Blandford,  the  Hudson  Bv.  &  B.  Bd.  Co.  may  construct  its  rail- 
road thru  .   (There  are  many  of  these  Bd.  acts.) 


HOME   RULE   FOR   OUR   CITIES.  399> 

North  Adams  hospital  may  establish  a  school  for  training  nurses. 

Beverly,  draw  in  Essex  bridge  may  be  relocated. 

Boston,  Aberdeen  street  may  be  laid  out  and  occupied  as  a  public 
highway. 

Boston  may  accept  legacy  of  John  L.  Randidge. 

Boston  may  grant  a  pension  to  John  Rogers. 

Boston  may  pay  a  sum  of  money  to  widow  of  C.  L. 

Boston  may  relocate  Chilmark  street. 

Boston  may  pay  a  sum  of  money  to  widow  of  John (several 

such  acts). 

Boston,  sale  of  old  public  library  building. 

Boston,  extension  of  Cove  street. 

Brockton,  name  of  Franklin  Meth.  Epis.  Chapel  changed  to  the 
Franklin  Meth.  Epis.  Church. 

Brockton,  Taunton  and  Brockton  St.  Ry.  may  operate  cars  in, 

Edgartown,  taking  of  eels  in  oyster  pond  in, 
water  supply  for. 

New  Bedford,  Board  of  Public  Works  of,  may  elect  a  clerk. 

Northfield,  a  bridge  to  be  constructed  in, 

Somerville,    appointment    of    certain    members    of    fire    depart- 
ment in, 

Springfield,  salary  of  justice  of  police  court  in, 

Wayland,  bridge  in  may  be  removed. 

Orange,  the  Orange  &  E.  Street  Railway  may  construct  its  rail- 
way in, 

These  are  from  '97.  A  few  from  the  long  lists  of  '98  will 
show  that  the  quality  is  about  the  same  from  year  to  year. 

Boston  may  pay  a  sum  of  money  to  (many  such  acts). 

Boston,  to  change  the  name  of  Penitent  Female  Refuge, 

Boston,  relative  to  Bennington  street  in, 

Boston,  widening  of  Rutherford  avenue. 

Boston,  relative  to  alleys  in, 

Boston  may  finish  the  construction  of  its  public  parks. 

Bourne,  the  Plymouth  &  Sandwich  St.  Ry.  Co.  may  construct  and 

operate  its  road  in  (many  such  acts), 
Chicopee,  filling  of  vacancies  in  board  of  aldermen. 
Falmouth,  water  supply  for  (a  number  of  such  laws), 
Salem,  appointment  of  assistant  assessors  in, 
Revere,  election  of  selectmen  in, 
Taunton,  custody  of  shade  trees  in, 

West  Newbury  may  appropriate  money  for  constructing  a  wharf, 
Windsor,  may  construct  a  telephone  line  to  Dalton. 

No  wonder  Governor  Russell  advocated  an  enlargement  of 
the  powers  of  municipalities.  In  his  address  to  the  Mas?, 
legislature,  Jan.  8,  1891,  pp.  24  to  26,  he  says: — 


400 


THE   BONDAGE   OF   CITIES 


"Much  special  legislation  is  enacted  in  behalf  of  cities  and  towns 
"and  is  made  necessary  by  their  limited  powers.  Twenty-th^ee 
"cities  and  forty-one  towns  were  the  subjects  of  special  acts  at 
"the  last  legislature.  In  my  opinion,  greater  powers  can  be  given 
"to  cities  and  towns  with  safety  and  advantage,  not  only  as-  a  relief 
"to  the  legislature,  but  as  a  just  and  proper  extension  of  local  self- 
"goveimment."  Speaking  of  the  terms  and  conditions  on  which 
street  franchises  should  be  granted,  and  of  an  act  that  passed  the 
House  requiring  the  sale  at  auction  of  such  franchises,  he  says: 
"In  my  judgment,  each  community  is  best  fitted,  has  the  right  and 
"ought  to  have  the  power,  to  determine  this  question  for  itself;" 
and  he  recommended  the  passage  of  a  law  allowing  each  muni- 
cipality to  fix  the  terms  on  which  such  grants  should  be  made. 

In  his  address  of  January  7,  1892,  page  42,  he  again  recommend! 
the  "extension  of  the  powers  of  cities  and  towns  and  of  local  self- 
"government,  especially  in  matters  of  taxation,  control  and  sale  of 
"franchises,  and  extending  the  limits  of  municipal  work  and  of 
"municipal   ownership." 

And  finally,  in  his  address  to  the  legislature,  January  5,  1893, 
page  12,  et  seq.,  under  the  caption  "Eight  of  Local  Self-Government 
in  Town  and  City,"  the  governor  said:  "The  right  of  self-govern- 
"ment  is  an  axiom  uf  our  political  system.  Wherever  this  right 
"can  be  exercised  directly  by  the  people  themselves,  such  exercise 
"should  be  carefully  conserved.  .  .  Due  regard  for  the  right  of 
"loca^  self-government  requires  not  only  non-interference  by  the 
"State  in  the  purely  local  affairs  of  cities  and  towns,  but  also  the 
"grant  to  them  of  greater  powers  in  order  that  there  may  be  the 
"most  successful  treatment  and  control  of  the  ever  increasing  prob- 
lems of  local  concern.  A  reference  to  the  acts  of  last  year  shows 
"that  nearly  one-third  of  its  four  hundred  and  forty  acts  were 
"special  laws  passed  on  the  application  of  twenty-five  cities  and 
"eighty-five  towns  [in  respect  to  little  local  matters],  and  there 
"were  also  eighty-seven  special  acts  relating  to  other  corporations," 
and  he  repeated  his  recommendations  of  former  years  for  the  sake 
of  progress,  for  the  relief  of  the  legislature,  and  as  a  matter  of 
justice  and  right. 

The  Fassett  Committee  appointed  in  1890  by  the  New  York 
Senate  to  investigate  municipal  government  in  that  state 
found  that  in  6  years,  1884  to  1889  inclusive,  the  New  York 
legislature  passed  1234  acts  relating  to  the  30  cities  of  the  state 
—390  of  the  acts  affecting  the  city  of  New  York.  In  1886, 
280  out  of  681  statutes  were  local  municipal  laws.  (See  Sen. 
Rep.  Fassett  Com.  1891,  Yol.  Y,  p.  459.)  For  examples  of 
New  York  special  legislation,  see  Appendix  II,  S. 

In  Wisconsin  in  1895  the  General  Laws  occupied  a  volume 
of  812  pages  and  "City  Charters  and  their  Amendments" 
filled  a  second  volume  of  1360  pages.     As  specimens  of  some 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  401 

of  the  local  measures  that  absorb  the  attention  of  Wisconsin 
legislators,  we  may  name  an  act  providing  that  bath  houses 
may  be  maintained  at  Hicks  Lake,  and  an  act  to  amend  the 
charter  of  Milwaukee  in  respect  to  sprinkling  the  streets. 
In  the  Minnesota  statutes  of  the  last  session  (1897)  I  find: 

Cities  are  authorized  to  compromise  and  settle  claims. 
Empowered  to  repair  market  houses  and  city  property. 
Authorized  to  issue  bonds  for  water  works,  hospitals,  etc. 
Time  for  payment  of  local  improvement  assessments  extended. 
Empowered  to  prevent  fights,  disorderly  conduct,  etc. 
Empowered  to  change  abandoned  cemeteries  into  parks. 
Empowered  to  take  bequests  in  trust  for  public  libraries. 
Cities  over  50,000  authorized  to  buy  any  water  plant  or  combined 

water  and  light  plant  in  operation  in  such  city. 
Fire  limits  may  be  prescribed  by  Councils,  etc.,  etc. 

Think  of  it!  A  city  has  to  have  legislative  permission  to 
compromise  and  settle  a  claim,  to  repair  its  own  property,  to 
change  its  own  cemetery  into  a  park,  buy  a  water  or  light 
plant,  or  take  a  bequest  for  a  public  library!  'No  individual 
of  age  and  apparent  discretion,  nor  any  association  of  indi- 
viduals whatever,  except  a  municipality,  would  think,  of  asking 
permission  to  repair  its  own  property — but  a  city  or  town — 
well,  it  would  ask  permission  to  sneeze  if  it  needed  to  perform 
that  operation;  it  can't  even  stop  a  fight  legally  till  the  legisla- 
ture says  it  may. 

A  large  part  of  our  state  legislation  consists  of  acts  that  deal 
with,  insignificant  local  matters  that  should  be  left  under  gen- 
eral laws,  to  the  discretion  of  municipal  and  county  authori- 
ties. In  Massachusetts  more  than  a  hundred  towns  and  cities 
apply  in  a  single  year  for  special  legislation  in  their  behalf  to 
the  great  overburdening  of  committees,  the  dissipation  of  legis- 
lative energy,  the  decision  of  numberless  local  questions  by 
men  who  know  little  or  nothing  about  the  case,  the  prevention 
of  due  consideration  of  important  State  affairs,  the  general 
distraction  of  attention  and  encouragement  of  loose  methods 
of  passing  laws,  or  allowing  them  to  pass  without  finding  out 
whether  they  ought  to  pass,  and  the  serious  congestion  of  the 
statute  book,  entailing  on  the  public  treasury  the  needless  cost 
of  printing  hundreds  of  laws  for  the  State  every  year,  when 


402  MUNICIPAL  LIBERTY. 

an  entry  on  the  books  of  a  city,  town,  or  county,  would  do  just 
as  well,  or  better. 

The  New  Jersey  General  Statutes,  1895.  contain  seven 
special  acts  as  to  cities  besides  numberless  fragments  affecting 
them  more  or  less.  There  is  an  act  concerning  cities  of  the 
first  class,  or  those  over  100,000  population;  another  as  to 
cities  of  the  second  class  between  12,000  and  100,000,  another 
as  to  third  class  cities,  all  those  not  in  the  first  or  second 
class,  except  Sea-side  resorts;  another  as  to  Sea-side  resorts; 
another  relating  to  cities  between  6,000  and  10,000;  another 
about  cities  below  5,000;  and  another  as  to  cities  generally. 
There  is  an  enormous  amount  of  repetition — the  councils  have- 
powers  that  are  similar  to  a  large  extent  in  the  different 
groups,  but  there  is  difference  enough  so  that  it  is  almost  im- 
possible to  tell  just  what  the  authority  of  a  particular  city  is 
under  any  given  circumstances — quite  impossible  without  em- 
ploying a  lawyer  to  investigate  the  statutes  and  decisions.  The 
General  Statutes  are  composed  of  three  big  volumes  containing 
4,098  enormous  pages — over  1,200  words  to  a  page,  and 
nearly  5,000,000  words  altogether,  and  every  legislative  ses- 
sion adds  another  book  of  laws ;  30  of  the  giant  pages  are  given 
to  a  dissertation  on  oysters  and  clams,  and  400  pages,  or  nearly 
50,000  words  are  devoted  to  cities  and  towns,  besides  the  quan- 
tities of  scraps,  to  exhaust  which  one  must  search  the  imper- 
fectly indexed  volumes  under  40  or  50  heads. 

This  egregious  violation  of  the  laws  of  liberty  and  decen- 
tralization, burdening  the  legislature  with  a  mass  of  local  con- 
cerns about  which  they  know  little,  and  care  little,  taking  their 
time  and  attention  from  the  broad  interests  they  ought  to  deal 
with,  diminishing  their  respect  for  and  interest  in  law  mak- 
ing, subjecting  local  business  to  irresponsible  "foreign"  con- 
trol, and  depriving  municipalities  of  the  benefits  of  self-gov- 
ernment, constitutes  one  of  the  great  evils  of  our  time. 

Third.  Another  result  of  our  present  system  is  a  great  lack 
of  elasticity  and  spontaneity  in  municipal  action. 

Fourth.  The  absence  of  municipal  independence  cripples 
local  patriotism,  creates  a  disastrous  apathy  in  many  honest 
citizens,  forfeits  the  educational  development  that  comes  of 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       403; 

earnest  attention  to  public  questions.  The  people  do  not 
manifest  the  interest  in  local  business,  especially  in  the  larger 
cities,  which  they  would  manifest  if  the  right  of  decision  and 
initiative  rested  with  them.  As  the  Fassett  Committee  says: 
"Our  cities  have  no  real  local  autonomy,  local  self-govern- 
ment is  a  misnomer,  and  consequently  so  little  interest  is  felt 
in  matters  of  local  business  that  in  almost  every  city  in  the 
state  it  has  fallen  into  the  hands  of  professional  politicians." ** 
As  Prof.  Goodnowsays,  in  subtance:  "The  indifference  Which, 
has  been  too  evident  in  many  of  our  large  municipalities,  has- 
undoubtedly  been  due  in  part  to  the  feeling  of  the  people  that 
their  efforts  were  of  little  avail.  Citizens  have  little  motive 
or  encouragement  to  act  in  New  York  when  they  know  that 
their  efforts  can  be  at  any  time,  and  as  a  matter  of  fact  have 
frequently  been,  frustrated  at  Albany."** 

Fifth.  Municipal  dependence  helps  the  politicians  and! 
lingsters  not  merely  thru  the  apathy  it  causes,  but  also  by* 
shifting  the  scene  of  action  to  a  field  where  corruption  wins 
more  easily  in  respect  to  city  affairs  than  it  usually  would  in 
the  city  itself.  It  is  easier  to  persuade  Mr.  B.  to  favor  a  bill 
that  will  take  money  out  of  A's  pocket  than  it  is  to  persuade 
A  to  favor  that  bill.  Mr.  rJ.,  representative  from  Cleveland 
draws  up  a  bill  to  extend  the  franchise  of  a  street  railway  com- 
pany for  which  he  is  counsel.  The  representative  from  Col- 
umbus, S,  has  a  bill  to  establish  a  state  commission  to  control 
the  city's  water  supply  on  the  understanding  that  he,  S,  will 
be  appointed  commissioner.  Mr.  Z,  of  Cincinnati,  is  engaged 
in  a  law  suit  which  will  become  more  hopeful  for  him  if  a 
law  is  enacted  changing  the  remedy  in  that  class  of  cases,  and 
so  he  introduces  a  bill  for  that  purpose.  In  one  case  a  legis- 
lator who  kissed  a  woman  on  the  street  without  permission, 
and  was  sued  for  damages,  introduced  a  bill  to  the  effect  that 
the  damages  for  kissing  a  woman  on  the  street  should  not  ex- 
ceed $250 — the  woman  was  pretty  and  he  feared  the  jury 
might  give  her  heavy  damages.  Mr.  X,  of  Toledo,  has  an  equ- 
ally public  spirited  measure  on  hand  and  so  have  other  repre*- 

♦(Senate  Rep.  Fassett  Com.,  1891,  Vol.  V.,  p.  13.) 
**  Polit.  Sc.  Quar.,  March,  '95. 


404  THE    CITY    FOR   THE    PEOPLE. 

sentatives.  X.  says  to  S.  Z.  X.  &  Co. :  "You  vote  for  my  bill, 
and  Til  vote  for  yours."  "All  right,"  say  S.  Z.  X.  &  Co. 
Some  members  vote  as  X.  wishes  because  they  are  friends  of 
bis,  and  have  no  interest  in  the  Cleveland  matter,  and  don't 
know  anything  about  it,  and  don't  care.  Other  members  are 
too  busy  to  pay  any  attention  to  the  bill,  tho  it  is  part  of  the 
business  they  are  paid  to  attend  to.  So  altogether,  by  negli- 
gence, indulgence,  log-rolling,  and  pressure  of  influence,  and 
of  money  if  need  be,  many  municipal  and  other  measures  are 
enacted,  which  have  no  public  purpose  for  a  motive,  but  exist 
for  private  advantage  and  profit.  In  this  way,  scheming  men 
are  able,  thro  legislative  influence,  to  secure  the  creation  of 
lucrative  offices  to  be  sustained  at  city  expense,  to  line  their 
pockets  with  the  people's  money  under  color  of  municipal  con- 
tracts and  public  works  which  a  really  self-governing  city 
would  never  have  authorized,  and  to  obtain  valuable  fran- 
chises in  relation  to  water,  gas,  electricity,  transit,  etc.,  without 
remuneration  to  the  city  whose  streets  are  used,  and  often 
without  the  consent  of  the  people  or  their  municipal  agents. 
And  it  happens  not  infrequently  ^hat  a  state  senator  or  repre- 
sentative from  a  city  becomes,  thru  his  power  in  the  legisla- 
ture, the  virtual  ruler  of  that  city,  subject  of  course  to  the  big 
politicians  and  bosses,  like  Croker,  Piatt,  Quay,  Hanna,  etc., 
who  can  control  not  only  cities,  but  anything  else  the  legisla- 
ture has  a  right  to  act  upon,  except,  perhaps,  a  great  railroad 
or  a  giant  monopoly.  These  industrial  bosses  and  political 
bosses  understand  each  other  so  well  that  we  have  not  had  a 
chance  to  see  which  would  win  in  a  fight  to  the  finish. 

Sixth.  The  path  of  progress  and  reform  is  obstructed  or 
blocked  by  the  inertia  consequent  on  the  necessity  of  fighting 
every  upward  measure  thru  the  legislature  against  the  force 
of  antagonistic  private  interests,  the  indifference  of  over- 
crowded and  more  or  less  alien  legislators,  and  the  weighty 
lack  of  local  patriotism  and  public  spirit  due  to  municipal 
dependence. 

Sometimes  the  private  interests  opposed  to  municipal  pro- 
gress form  a  state  wide  union  to  resist  with  their  whole  power 
tny  measure  looking  toward  reform  in  any  city.     When  a 


HOME   RULE   FOR   OUR   CITIES.  405 

bill  was  brought  before  the  New  York  legislature  to  authorize 
a  municipal  subway  in  Syracuse,  a  prominent  lobbyist  told  the 
mayor  of  Syracuse  that  he  was  wasting  his  time  working  for 
the  bill;  it  might  pass  the  legislature  but  it  would  not  become 
law;  it  would  be  killed  either  in  the  legislature  or  afterward, 
for  all  the  electric  companies  in  the  state  had  put  funds  in  j» 
pool  in  the  hands  of  a  lobbyist  he  knew  (and  named)  to  be 
used  against  any  bill  tending  toward  public  ownership.  In 
this  case,  the  bill  passed  the  legislature,  but  died  in  the  Gov* 
ernor's  hands. 

The  lack  of  home  rule  hinders  development  in  other  ways 
than  those  already  mentioned.  For  example,  Governor  Pin- 
gree  tells  me  that  if  Detroit  had  possessed  home  rule  a  few 
years  ago,  it  would  have  been  possible  to  accept  the  offer  made 
by  a  responsible  syndicate  to  run  all  the  street  railways  of  the 
city  as  one  system  on  a  uniform  2^  cent  fare  with  free  trans- 
fers, and  pay  the  interest  on  the  sum  expended  by  the  city  in 
obtaining  possession  of  the  roads  under  the  right  of  eminent 
domain.  It  was  a  splendid  offer,  but  Detroit  was  still  in  her 
nonage,  she  could  not  act  for  herself,  and  the  legislature  was 
not  in  session,  and,  if  it  had  been,  a  long  and  costly  fight  with 
the  companies  would  have  been  necessary,  with  defeat  for  the 
city  perhaps  at  the  end.  The  Governor  knows  whereof  he 
speaks,  for  he  spent  $75,000  of  his  own  money  fighting  corpor- 
ations while  he  was  Mayor  of  Detroit. 

THE   REMEDY. 

The  cure  for  the  evils  of  municipal  dependence  is  muni- 
cipal independence.  A  certain  amount  of  dependence  is  good 
— essential  to  state  and  national  organization,  and  the  co- 
ordination of  effort  for  wide  purposes;  but  over-dependence 
is  an  evil,  and  the  excess  should  give  place  to  independence. 
Instead  of  having  to  get  permission  for  every  move  in  local 
concerns,  municipalities  should  be  free  under  general  regu- 
lations, to  act  in  any  way  they  please  so  long  as  they  do  not 
conflict  with  superior  law.  This  we  may  call  Ue  Manhood 
Principle,  as  distinguished  from  the  Infancy  Principle, 
whereby  the  child,  or  municipality,  acts  by  permission.     This 


400  THE   BONDAGE   OF   CITIES 

rule  would  give  municipalities  a  strong  initiative,  a  power  of 
self-movement,  after  the  manner  of  living  things,  instead  of 
compelling  them  to  remain  motionless,  like  a  lifeless  machine, 
till  the  legislature  turns  on  the  steam.  The  Manhood  Prin- 
ciple prevails  in  some  countries  of  Europe,1  is  imperfectly  ex- 

P)  In  England,  the  same  law  holds  respecting  municipalities  as  in  this 
■country;  a  city  can  do  nothing  without  permission,  but  Parliament  has 
generally  been  quite  liberal  in  granting  permissions,  and  much  good  has 
t>een  done,  especially  by  such  sweeping  enactments  as  the  Tramways  Act 
of  1870,  under  which  municipalities  may  build  their  own  tramways  if  they  so 
■desire,  or  if  the  city  chooses  to  allow  a  private  company  to  build  the  lines, 
then  at  the  end  of  21  years,  and  of  each  subsequent  franchise  period  of  7 
years,  the  city  has  2  years  in  which  it  may  buy  the  railways  at  the  actual 
value  of  the  physical  plant.  About  one-quarter  of  the  tramways  of  England 
and  Scotland  are  owned  by  municipalities,  and  additions  to  the  list  are  being 
•constantly  made  as  the  franchise  periods  expire.  Special  permission,  how- 
ever, must  be  obtained  if  the  city  wishes  to  operate  us  tramways.  This  has 
been  secured  by  a  number  of  cities  without  serious  difficulty,  Out  permissions 
to  buy  up  and  rebuild  the  slum  districts,  and  to  own  and  operate  a  municipal 
telephone  system  are  not  so  easily  obtained,  as  Glasgow  has  reason  to  know 
the  difficulty  in  the  latter  case  being  due  to  the  reluctance  of  the  postal 
authorities  to  grant  telephone  licenses  that  will  result  in  a  duplication  of 
exchanges  in  the  same  locality,  preferring  to  wait  until  the  whole  system 
•can  become  public  at  reasonable  cost  without  incurring  the  complexities  and 
wastes  of  competition.  Notwithstanding  the  absence  of  municipal  sover- 
eignty de  jure,  a  number  of  English  cities  have  made  considerable  progress 
toward  real  self-government  In  local  concerns.  Glasgow,  for  example,  the 
•second  city  in  Great  Britain,  has  control  of  her  streets,  owns  and  operates 
iher  street  railways,  gas  and  electric  works  for  public  lighting  and  sale  to 
consumers,  water  works,  hydraulic  power  works  to  supply  motive  power  for 
elevators,  etc.,  hospitals,  sanitary  wash-houses,  sewers,  garbage  and  street 
cleaning  plants,  municipal  farm,  model  tenements,  and  lodging  houses,  public 
toaths  and  laundries,  public  markets,  cattle  yards  and  slaughter  houses,  parks, 
play  grounds,  fire  department  and  police  (partly  paid  for  by  a  government 
grant,  the  maintenance  of  order  being  in  theory  and  origin  a  general  rather 
than  a  local  function),  public  ferries,  steamships,  docks,  shipyards,  in  fact 
the  whole  harbor  and  its  various  services. 

The  development  of  municipal  control  over  local  business  affairs  In  Glas- 
gow and  Birmingham  and  other  English  cities  in  the  last  few  decades  has 
had  much  to  do  with  their  transformation  from  among  the  most  corruptly 
governed  to  the  front  rank  among  the  best  governed  cities  of  the  world. 

In  France  the  dual  character  of  the  municipality  is  clearly  recognized, 
the  mayor  being  distinctly  understood  to  act  in  the  double  capacity  of  agent 
tor  the  general  government,  and  agent  for  the  commune.  The  law  expressly 
ascribes  to  him  this  two-fold  character.  As  agent  for  the  nation,  he  must 
attend  to  military  matters,  national  taxes,  registration  of  births,  deaths  and 
marriages,  and  the  general  execution  of  all  national  laws  in  the  commune. 
As  agent  of  the  municipality,  he  is  charged  with  the  care  and  management 
of  the  municipal  property,  the  direction  of  public  works  of  a  local  character, 
leasing  places  in  the  markets,  attending  to  various  specified  business  trans- 
actions in  behalf  of  the  commune,  and  in  general  with  the  carrying  out  of 
the  decisions  of  the  municipal  council. 

Both  in  France  and  in  Germany  the  re!e  of  law  Is  that  a  municipality  Is 
free  to  do  any  act  not  contrary  to  the  laws  above  it— the  exact  reverse  of  our 
rule.  Here  cities  can  do  nothing  without  permission;  there  cities  can  do 
anything  unless  forbidden. 

In  France,  tho  the  principle  is  good,  the  limitations  of  the  superior  law 
are  great;  but  in  Germany,  municipal  home  rule  really  does  exist  to  a  very 
substautial  degree,  and  with  marked  advantages  in  awakening  local  patriot- 
ism and  securing  men  of  high  character  and  ability  to  manage  city  affairs. 
In  the  18th  Century,  the  Prussian  policy  was  to  "sink  the  independence  and 
individuality  of  the  municipalities  in  the  absolutism  of  the  state,  going  even 
so  far  as  to  treat  municipal  properly  as  belonging  to  the  state  *  *  *  * 
But  all  this  was  changed  by  the  legislation  of  1808.  Municipalities  were 
recognized  as  organic  entities,  with  their  own  properties  and  functions,  and 
with  the  right  of  entire  self-government  within  the  sphere  of  their  strictly 
local  and  neighborhood  concerns.  There  are  in  the  German  conception  of 
city  government  no  limits  whatever  to  the  municipal  functions.  It  is  the 
business  of  the  municipality  to  promote  In  every  feasible  way  Its  own 
welfare  and  the  welfare  of  its  citizens."  The  Germans  regard  municipal 
ownership  and  management  of  public  utilities  simply  as  part  of  a  thrifty  and 
progressive  municipal  housekeeping.  Everything  is  involved  in  the  concep- 
tion of  the  municipal  household  and  the  full  and  unlimited  responsibility  of 
the  city  for  the  welfare  of  its  citizens.  "The  German  city  holds  itself  re- 
sponsible for  the  education  of  all,  for  the  provision  of  amusement  and  the 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  407 

pressed  in  the  charters  of  some  of  our  cities,  and  partly  incor- 
porated in  the  constitutions  of  California,  Washington, 
and  some  other  states,  and  in  the  Missouri  statutory  powers 
of  first  class  cities,  etc.  While,  however,  this  rule  con- 
fers on  the  municipal  body  the  power  of  self-movement,  and, 
when  joined  with  constitutional  safeguards  against  special 
legislation,  and  provisions  securing  the  referendum,  is  a  most 
valuable  contribution  to  municipal  liberty,  yet  it  doas  not  pre- 
vent legislative  obstruction  of  municipal  movement.  The 
legislature  can  still,  by  positive  action,  completely  control  the 
municipality.  To  prevent  this  in  matters  that  should  be  left 
to  local  discretion,  a  limited  sphere  of  local  activity  should  be 
clearly  marked  off  and  deeded  to  local  self-government,  to 
belong  to  municipalities  absolutely,  to  the  positive  exclusion 
of  legislative  interference.  The  state  and  the  nation  each  has 
such  a  sphere;  why  not  the  city?  The  idea  of  assigning  such 
a  local  area  of  assured  self-government  for  municipalities  is  an 


means  of  recreation,  for  the  adaptation  of  the  training  of  the  young  to  the 
necessities  of  gaining  a  livelihood,  for  the  health  of  families,  for  the  moral 
Interests  of  all,  for  the  civilizing  of  the  people,  for  the  promotion  of  indi- 
vidual thrift,  for  protection  from  various  misfortunes,  for  the  development 
of  advantages  and  opportunities  in  order  to  promote  the  industrial  and  com- 
mercial well  being,  and  incidentally  for  the  supply  of  common  services  and 
the  introduction  of  conveniences."  Such  are  some  of  Dr.  SUaw's  remarks  in 
his  Municipal  Government  in  Europe,  pp.  305-329,  and  he  goes  on  to  speak  In 
detail  of  the  splendid  efficiency  of  German  city  governments  in  the  prosecu- 
tion of  public  works  and  enterprises,  and  the  care  that  is  taken  with  gas, 
electric  light  and  street  railway  franchises,  etc.,  it  being  a  common  practice 
when  a  franchise  is  leased  to  a  private  company  to  provide  in  the  contract: 
(1)  for  adequate  payment  to  the  city  for  the  privileges  granted,  (2)  for 
municipal  supervision  of  accounts  and  control  of  the  service,  (3)  for  reason- 
able rates,  (4)  for  city  purchase  at  the  fair  value  of  the  plant  estimated  ac- 
cording to  methods  clearly  stated  in  the  contract,  and  (5)  for  cession  of  the 
entire  system  to  the  city  without  payment  at  the  end  of  the  franchise  term. 
After  speaking  of  these  matters  Dr.  Shaw  says:  "In  studying  these  German 
contracts  one  is  always  impressed  with  a  sense  of  the  first  class  legal,  finan- 
cial, and  technical  ability  that  the  public  is  able  to  command;  while  Ameri- 
can contracts  always  impress  one  with  the  unlimited  astuteness  and  ability 
of  the  gentlemen  representing  the  private  corporations."    Ibid,  p.  350. 

The  conception  of  a  city  as  a  self-governing  household  fully  responsible 
for  the  welfare  of  the  family,  and  fully  able  to  provide  for  that  welfare,  la 
very  different  from  the  conception  of  a  city  as  a  creature  of  the  legislature, 
intended  simply  to  carry  out  the  will  of  the  legislature,  having  no  powers 
except  such  as  the  legislature  may  see  fit  to  grant,  and  no  ability  to  do  any- 
thing without  express  permission;  and  to  this  difference  is  largely  due  the 
superiority  of  German  municipalities.  A  similar  difference  is  one  of  the 
Important  factors  in  Glasgow's  wonderful  development  and  magnificent 
success.  The  conception  of  the  city  as  an  independent  self-governing  group, 
responsible  for  the  welfare  of  its  citizens  and  with  full  right  and  ability  to 
provide  for  it,  'has  not  yet  embodied  itself  in  British  law,  but  the  conception 
has  taken  possession  of  the  people  of  a  considerable  number  of  English 
municipalities,  and  has  transformed  them,  governmentally,  Industrially, 
socially,  and  the  new  sentiment  will  soon  be  too  strong  for  any  Parliament 
to  break.  Home  rule  for  cities  may  be  practically  assured  in  this  country 
also  by  the  growth  of  a  similar  sentiment  here,  without  constitutional 
changes;  but  the  constitutional  method  seems  the  more  rapid  and  definite 
and  certain,  and  besides  the  discussion  of  the  proposed  amendment  to  our 
constitution  Is  one  of  the  most  effective  methods  of  educating  ourselves  to  a 
full  understanding  of  the  subject,  and  of  developing  public  opiuion  in  favor 
of  Municipal  Home  Rule. 


408 


MUNICIPAL  LIBERTY. 


application  of  what  we  may  call  the  Democratic,  or  Popular, 
or  Distributed  Sovereignty  Principle — the  principle  which 
gives  to  each  group  of  men  the  government  of  those  affairs 
which  are  specially  and  peculiarly  their  own,  so  that  interest 
and  power  may  go  together,  and  no  one  be  given  control,  in 
his  own  right,  of  matters  that  really  belong  to  other  people  of 
full  age  and  capacity.  The  Manhood  Principle  and  the  Dis- 
tributed Sovereignty  Principle  together  make  up  the  Liberty 
Principle,  or  Home  Rule  and  Self-government,  de  facto  and  de 
jure,  established  and  certain.  The  distinction  between  state 
and  local  interests  and  the  importance  of  municipal  self-gov- 
ernment have  been  frequently  emphasized  by  legal  authorities, 
and  tho  not  yet  denned  and  protected  as  they  should  be,  they 
have  had  large  influence  in  the  framing  of  laws  and  govern- 
ments. Dillon  says:  "The  fundamental  idea  of  a  municipal 
corporation  proper  is  to  invest  the  people  of  a  thickly  popu- 
lated place,  or  district,  with  the  power  of  regulating  their  own 
local  affairs,  which  are  of  a  nature  not  common  to  the  state  at 
large,  and  which  it  is  supposed  they  can  regulate  for  them- 
selves better  than  the  legislature  can  regulate  them  by  general 
enactments."     (§27.) 

Interpreting  a  constitutional  provision  to  the  effect  that 
municipal  officers  must  be  elected,  or  appointed,  by  the  muni- 
cipal authorities,  the  New  York  Court  of  Last  Resort  has  said : 
"This  right  of  self-government  lies  at  the  foundation  of  our 
"institutions,  and  cannot  be  disturbed  or  interfered  with  even 
"in  respect  to  the  smallest  of  the  divisions  into  which  the  state 
"is  divided,  without  weakening  the  entire  foundation;  and 
"hence  it  is  a  right  not  only  to  be  carefully  guarded  by  every 
"department  of  the  Government,  but  every  infraction  or  in- 
"vasion  of  it  ought  to  be  promptly  met  and  condemned,  especi- 
ally by  the  courts,  when  such  acts  become  the  subject  of  judi- 
cial investigation."1 

In  People  v.  Ingersoll,  58  K  Y.  1,  The  Court  said  that  the 
relation  of  principal  and  agent  does  not  exist  between  the 
State  and  a  municipal  corporation  in  respect  to  the  exercise  of 
corporate  functions.     "In  political  and  governmental  matters, 


<»)  People  v.  Albertson.  50  N.  T.  50.  57  (1873). 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       40S 

the  municipalities  are  the  representatives  of  the  sovereignty 
of  the  State,  and  auxiliary  to  it;  in  other  matters  relating  to 
property  rights,  pecuniary  obligations,  they  have  the  attributes 
and  distinctive  legal  rights  of  private  corporations." 

The  powerful  opinions  of  the  supreme  courts  of  Michigan 
and  Indiana  have  already  been  cited.     Almost  as  strong  are 
the  words  of  Chief  Justice  Dixon  in  Milwaukee  v.  Milwaukee,. 
12  Wis.  93,  where  it  was  held  that  the  legislature  could  not 
divest  a  town  of  its  title  to  land  without  the  town's  assent,  and 
that  an  act  annexing  part  of  a  town  to  a  city  did  not  divest  the 
right  of  the  town  to  land  in  the  annexed  area,  to  which  it  held 
the  exclusive  title.     The  Chief  Justice  distinguished  between; 
the  municipality  "as  a  civil  institution  or  delegation  of  merely 
"political  power,  and  as  an  ideal  being    endowed    with    the 
"capacity  to  acquire  and  hold  property  for  corporate  and  other 
"purposes,"  and  said  "In  its  political  or  governmental  capacity,. 
"it  is  liable  at  any  time  to  be  changed,  modified,  or  destroyed 
"by  the  legislature;  but,  in  its  capacity  of  owner  of  property, 
"designed  for  its  own  or  the  exclusive  use  and  benefit  of  its- 
"inhabitants,  its  vested  rights  of  property  are  no  more  the  sub- 
"ject  of  legislative  interference  or  control,  without  the  consent 
"of  the  corporators,  than  those  of  a  merely  private  corporation* 
"or  person." 

In  127  Mo.,  642  (1895),  the  Supreme  Court  of  Missouri 
drew  a  strong  line  between  state  interests  and  functions  and 
those  which  are  "of  merely  local  and  municipal  concern,"  and 
held  that  the  legislature  could  not  modify  the  freehold 
charters  of  the  large  cities  in  respect  to  local  affairs.*  (See> 
p.  424.) 

CONSTITUTIONAL  AMENDMENT. 

The  best  institutional  remedy  would  seem  to  be  an  amend- 
ment to  each  state  constitution  drawing  the  line  between  state- 
and  municipal  interests  as  clearly  as  the  federal  constitution- 
draws  the  line  between  state  and  national  interests,  providing 
for  municipal  sovereignty  within  the  defined  sphere  of  muni- 
cipal business,  and  full  freedom  to  do  any  act  even  tho  it  may 

*  See  further  on  this  subject  51  Me.  3G2:  103  Mass.  409:  3  Ilill,  531;  31 
Pa.  183;  64  Pa.  180;  18  Cal.500;  28  Mich.  228,  237;  24  Mich.  44;  Compare 
14   Oreg.   98. 


410 


THE    CITY    FOR    THE    PEOPLE. 


be  beyond  the  said  sphere,  provided  it  does  not  conflict  with 
state  or  national  law.  This  would  establish  the  manhood  rale, 
plus  the  absolute  exclusion  of  the  legislature  from  a  specified 
reservation  of  local  sovereignty.  Or,  the  proper  area  could  be 
deeded  to  state  sovereignty  by  metes  and  bounds,  as  the  area 
of  federal  sovereignty  is  marked  out  in  the  national  constitu- 
tion, leaving  the  remaining  territory  to  b«  divided  between 
individual  and  municipal  sovereignty,  under  general  princi- 
ples and  specific  limitations,  such  as  those  applied  to  state 
sovereignty  in  the  constitution  of  the  United  States.  The 
better  plan  would  seem  to  be  to  preserve  a  limited  area  for 
municipal  sovereignty  covering  franchises  and  public  enter- 
prises of  a  local  character,  leaving  all  the  rest  of  the  existing 
state  sovereignty  in  its  present  indefinite  shape.  This  would 
seem  best  to  begin  with  because  it  is  less  of  a  change  from 
present  conditions  than  the  other  plan,  and  because  it  is  very 
important  not  to  diminish  too  much  the  power  of  the  state, 
which  is  the  unifying,  systematizing,  co-ordinating  power 
upon  which  we  must  depend  for  uniformity,  and  the  equali- 
zation of  burdens  and  benefits  within  the  state  area.  It  is 
quite  as  important  not  to  deprive  the  state  of  the  sovereignty 
necessary  for  the  vigorous  and  effective  performance  of  its  du- 
ties, as  it  is  not  to  deprive  the  city  of  the  sovereignty  necessary 
for  the  vigorous  and  effective  performance  of  its  duties.  Each 
should  have  its  proper  share  of  sovereignty,  a  due  balance 
being  maintained  in  the  same  proportion  that  state  interests 
bear  to  local  municipal  interests,  just  as  a  due  balance  is  main- 
tained between  state  and  Federal  sovereignties  in  proportion 
to  national  and  state  interests. 

Under  such  a  Home  Rule  Amendment  as  we  have  suggested, 
each  city  and  town  would  make  its  own  charter,  subject  to 
general  statutes  regarding  state  interests,  and  in  harmony  with 
the  general  principles  and  limitations  above  mentioned,  just  as 
each  state  now  makes  its  own  constitution  subject  to  federal 
limitations. 

HOME  RULE  CHARTERS  AND  THE  REFERENDUM. 

In  order  that  such  municipal  charters,  and  the  ordinances 


ROME   RULE   FOR   OUR    CITIES.  411 

made  under  them,  may  be  in  accord  with  the  will  of  the  people 
(male  citizens  of  full  age  and  of  apparently  or  presumedly 
sound  discretion)  it  is  necessary  to  have  constitutional  pro- 
visions guaranteeing  the  initiative  and  referendum  in  the 
making  and  amending  of  charters  and  ordinances.  Other- 
wise, municipal  independence  might  simply  mean  the  substi- 
tution of  mayor  and  councils,  or  mayor  and  aldermen  for 
governor  and  legislature — a  change  that  would  generally  be 
of  some  benefit,  since  mayor,  aldermen  and  councilmen  belong 
in  the  city  they  rule,  understand  something  of  its  condition, 
.are  elected  by  the  citizens  of  the  city,  and  have  interests  thru 
which  they  can  be  made  to  feel  the  local  public  sentiment  to 
some  extent,  while  the  state  legislature  is  almost  wholly  com- 
posed of  men  from  other  cities  and  towns,  who  have  little  or 
no  acquainance  with  the  city  under  consideration,  do  not 
understand  its  needs,  have  no  direct  interest  in  it,  were  not 
-elected  by  its  citizens,  and  do  not  feel  the  slightest  responsi- 
bility to  them.  Nevertheless,  home  rule,  without  the  refer- 
endum, would  still  be  government  by  the  few,  and  tho  govern- 
ment of  local  business  by  a  few  who  live  in,  understand,  and  are 
elected  by  the  city,  is  likely,  as  a  rule,  to  be  superior  to  govern- 
ment of  local  business  by  a  few  who  don't  live  in,  nor  under- 
stand, nor  owe  allegiance  to  the  city;  yet  government  by  a  few 
in  any  form  is  likely  to  be  far  less  honest,  just,  progressive  and 
beneficient  than  government  by  the  whole  body  of  American 
citizenship.  As  soon  as  a  community  has  reached  a  stage  of 
evolution  whereon  it  is  able  to  govern  itself  without  a  break- 
down, it  should  exercise  self-rule,  for,  thru  that  exercise  alone 
can  come  the  full  justice  and  development  of  a  perfect 
•democracy. 

SEPARATION  OF  STATE  AND  MUNICIPAL  AFFAIRS. 

A  municipal  government  is  of  a  two-fold  character;  on  tha 
one  hand  it  is  an  agency  of  the  state  to  deal  with  state  affairs, 
and  on  the  other  hand  it  is  an  agency  of  the  municipality  t© 
■deal  with  municipal  affairs.  In  the  first  relation  its  function* 
are  political  and  governmental;  in  the  second,  its  functions  are 
largely  similar  to  those  of  the  directors  of  a  business  corpor- 


412  THE    BONDAGE    OF    CITIES 

ation  whose  stockholders  are  the  citizens  of  the  city.  Most  of 
the  difficulty  and  confusion  in  municipal  law  has  come  from 
the  failure  of  constitutions,  legislatures  and  courts  of  law  to 
draw  the  line  between  these  two  sets  of  functions  with  proper 
strength  and  clearness. 

The  remedy  lies  in  establishing  a  separation  of  state  and 
municipal  interests,  similar  in  substance  to  the  separation  es- 
tablished by  the  federal  constitution  between  state  and 
national  interests;  the  principle  of  decentralization,  or  the 
nearest  possible  approach  to  individual  freedom,  being  always 
the  guide;  no  liberty  should  be  taken  from  the  individual  and 
given  to  any  public  body  unless  the  transfer  is  clearly  for  the 
public  good;  no  liberty  within  the  public  sphere  should  be» 
taken  from  the  municipality  and  placed  in  a  wider  grasp  unless 
the  wider  public  good  requires  it;  and  no  liberty  of  the  wider 
class  should  be  taken  from  the  state  and  given  to  federal  power 
unless  the  national  good  demands  it. 

As  a  business  corporation  dealing  with  property  for  muni- 
cipal revenue,  service,  or  advantage,  establishing  water  works* 
gas  plants,  telephone,  electric  light,  and  street  car  systems^ 
markets,  bridges,  ferries,  parks,  etc.,  the  city  should  have  the 
fullest  discretion  subject  only  to  broad  limitations  in  respect 
to  debt,  unanimity,  submission  of  measures  to  the  people  at  the 
polls,  etc.,  to  prevent  improper  haste  or  ill-considered  action, 
or  possible  tyranny  of  majorities,  or  injustice  to  private  indi- 
viduals or  companies. 

In  this  relation,  the  municipality  is  an  organization  for  the 
common  benefit  of  its  citizens,  and  its  government  an  agency 
whose  duty  it  is  to  do  all  in  its  power  for  the  prosperity  and 
advantage  of  its  principals.  In  respect  to  state  interests,  the 
municipality  occupies  a  subordinate  position ;  yet  even  here  it 
should  be  free  to  act  so  long  as  it  does  not  conflict  with  state 
arrangements.  For  example,  the  preservation  of  order  and 
prevention  of  infection  are  state  affairs;  but  they  are  also  of 
prime  importance  to  every  municipality,  and  it  should  be  free 
to  establish  a  police  or  health  department  of  its  own  where  the 
state  does  not  act,  or  in  addition  to  the  state  agencies  where  it 
does  not  deem  them  sufficient;  in  other  words,  it  should  have 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  413 

a  sort  of  concurrent  jurisdiction  of  state  interests  within  its 
own  domain,  wherever  the  state  does  not  claim  exclusive  juris- 
diction. 

It  may  not  be  an  easy  matter  to  arrive  at  a  satisfactory 
division  of  state  and  municipal  functions,  but  it  can  hardly  be 
more  difficult  than  the  separation  of  state  and  national  func- 
tions that  was  so  satisfactorily  accomplished  by  the  maters  of 
the  federal  constitution.  Perhaps  it  might  be  well  to  try  a 
similar  plan  in  the  present  case;  a  convention  of  distinguished 
judges,  statesmen,  philosophers,  etc.,  might  at  least  be  able  to 
arrive  at  conclusions  that  would  greatly  facilitate  a  solution 
of  the  problem,  and  give  the  courts  and  constitution  makers 
of  the  various  states  a  standard  that  would  help  to  mould  the 
law  of  the  country  into  at  least  a  semblance  of  consistency  and 
wisdom  on  this  vital  topic. 

After  the  division  of  sovereignty  is  made,  it  would  be  well 
to  have  state  and  municipal  elections  on  different  days  some 
months  apart,  so  that  the  choice  of  men  to  manage  the  water- 
works and  grade  the  streets  might  be  more  dependent  on  fit- 
ness and  less  upon  the  candidates'  opinions  about  free  silver, 
or  the  tariff,  or  their  affiliations  with  any  state  or  national  or- 
ganization or  party. 

STEPS  TOWARD  HOME  RULE. 

On  the  way  toward  the  solid  independence  outlined  in  the 
last  two  sections  a  number  of  partial  reforms  may  be  of  ad- 
vantage. When  it  is  not  possible  to  get  a  whole  loaf,  half  a 
loaf  is  better  than  none. 

A.  Broad  statutes  may  be  passed  giving  cities  larger 
powers,  especially  in  regard  to  the  granting  of  franchises,  and 
the  right  to  own  and  operate  local  business  enterprises.  A 
considerable  movement  has  taken  place  in  this  direction  in  the 
last  few  years,  but  it  often  requires  a  hard  fight  to  pass  such 
bills,  and  they  are  apt  to  be  narrowed  in  scope,  and  gorged 
with  wind  and  red  tape,  and  assassinated  with  ingenious 
amendments  and  limitations.  For  example,  it  required  a 
three  years'  struggle  to  get  the  Massachusetts  law  permitting 
cities  and  towns  to  establish  municipal  electric  light  works,  and 


414 


MUNICIPAL  LIBERTY. 


even  then  its  corporation  enemies  succeeded  in  crippling  it 
with  amendments  which  made  it  of  little  practical  use. 

In  spite  of  all  the  imperfections  of  legislative  enlargemei 
of  municipal  powers,  much  good  has  been  done  in  this  way,, 
and  in  conservative  states  it  is  probably  the  line  of  least  resist- 
ance, and  the  greatest  immediate  hope.  We  have  seen  thai 
Governor  Russell  of  Massachusetts  was  a  powerful  and  per- 
sistent advocate  of  this  reform. 

B.  The  second  partial  remedy  lies  in  the  possible  adoption 
of  the  Michigan  Doctrine  by  the  courts  of  other  states.  This 
is  probably  not  the  most  hopeful  line  of  attack,  but  is  worth 
the  effort  wherever  occasion  affords  an  opportunity  to  ask  for 
a  ruling  in  line  with  the  principles  laid  down  by  Judge  Cooley,. 
as  above  stated. 

C.  Greater  help  is  likely  to  be  derived  from  the  insertion 
of  particular  provisions  in  the  state  constitutions — such  provi- 
sions, for  example,  as  the  following: 

1.  For  the  local  election  of  municipal  officers. 

2.  Against  special  legislation  for  laying  out,  or  vacating 
streets,  granting  franchises  to  railways,  turnpikes,  ferries,  etc.., 
creating  corporations,  or  granting  corporate  powers,  creating 
municipal  offices,  or  prescribing  their  duties,  creating  or 
amending  municipal  charters,  or  regulating  municipal  affairs, 
etc  It  is  a  marked  advance  to  take  away  from  the  legislature 
its  power  to  pass  special  acts,  and  yet  by  means  of  grouping 
the  cities  in  classes  the  legislature  may  be  able  to  almost,  or 
quite,  attain  the  same  individual  or  specific  action  under  what 
is  called  "general  legislation"  (or  legislation  affecting  all  the 
cities  of  the  same  class)  that  it  formerly  attained  by  means  of 
what  was  called  "special  legislation. " 

3.  Provisions  requiring  local  consent  to  street  railway,  gas? 
electric  light  or  telephone  franchises. 

4.  Or,  still  better,  provisions  transferring  from  the  state  to 
the  municipality  the  power  to  grant  such  franchises,  prescribe 
their  conditions,  and  regulate  their  exercise. 

6.  Or,  better  yet,  provisions  establishing  the  right  of  cities 
and  towns,  not  only  to  grant  and  regulate,  but  to  own  and 
operate  water  works,  gas  works,  street  railways,  telephone  sys- 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       415 

terns,  etc., — best  when  the  clause  is  a  sweeping  one  that  gives 
all  municipalities  the  right  to  own  and  operate  any  public 
work  on  the  people's  vote  to  that  effect. 

6.  It  is  most  important  to  secure  the  initiative  and  refer- 
endum upon  all  municipal  business,  franchises,  ordinances,  etc. 
Nebraska  took  a  step  in  this  direction  in  a  statute  passed  last 
year,  but  it  is  much  better  to  secure  the  right  by  constitutional 
provision  as  was  done  in  South  Dakota  this  fall  (1898).  Some 
state  constitutions  have  partial  provisions  requiring  local  con- 
sent to  incorporate  street  railway,  electric  light,  telephone  and 
other  franchise  grants,  but  I  know  of  no  constitution,  as  yet, 
that  secures  the  citizens  of  cities  their  full  rights  of  veto  and 
initiative. 

7.  A  measure  more  comprehensive  than  any  in  this  section,, 
except  the  last,  is  to  be  found  in  a  constitutional  clause  per- 
mitting municipalities  to  make  their  own  charters.  If  the 
line  between  state  and  municipal  affairs  is  also  drawn  by  the 
constitution  and  legislative  action  excluded  from  the  special 
municipal  sphere,  we  have  the  final  remedy  already  spoken  of ; 
but  even  without  this,  a  simple  clause  allowing  cities  to  make 
their  own  charters  subject  to  state  enactments  has  been  found 
very  useful.  Mo.  (1875),  Cal.  (1879),  Wash.  (1890),  and 
Minn.  (1896),  have  put  provisions  of  this  kind  in  their  consti- 
tutions; and,  by  a  statute  of  Louisiana,  passed  in  1896,  any 
city  or  town  in  that  state  (except  New  Orleans)  may  adopt  a 
charter  of  its  own*1 

HOME-MADE  CHARTER  LAWS. 

The  first  constitutional  provision  was  adopted  by  Missouri 
in  1875;  cities  over  100,000  population  (i.  e.,  St.  Louis  and 
Kansas  City)  may  make  their  own  charters.  The  city  may 
elect  13  freeholders  to  draw  up  a  charter,  which  should  be  sub- 
mitted to  the  voters  of  the  city,  and  if  ratified  by  four-fifths  of 
the  qualified  electors  voting  should  supersede  the  former 
charter,  and  all  amendments  thereto.  Such  charter  may  be 
amended  by  proposal  of  the  law  making  authorities  of  the  city 
published  thirty  days  in  three  newspapers  of  largest  circulation 
in  the  city,  submitted  to  the  voters  sixty  days  or  more  after  the 


O  Detroit  may  amend  its  charter  by  direct  legislation.    (See  Appendix  T.> 


416 


THE    CITY    FOR    THE    PEOPLE. 


publication  of  the  proposals,  a  ad  accepted  by  at  least  3/5  of 
the  qualified  voters  of  such  city  voting  at  a  general  or  special 
election,  and  not  otherwise  (Missouri  constitution,  1875,  Art. 
IX.  §16).  No  provision  is  made  for  legislative  approval  of 
the  amendment.  The  section  merely  says  after  the  words  just 
given,  "but  such  charter  shall  always  be  in  harmony  with, 
"and  subject  to,  the  constitution  and  laws  of  the  state." 

Section  20  of  the  same  article  gives  the  local  authorities  of 
St.  Louis  authority  to  appoint  an  election  at  which  the  citizens 
may  choose  a  board  of  13  freeholders  to  make  a  charter  which, 
if  adopted  by  a  majority  of  the  qualified  electors  voting,  shall 
become  the  organic  law  of  the  city. 

In  the  next  year,  Aug.  22,  1876,  St.  Louis  adopted  a  free- 
hold charter,  and  Kansas  City  followed,  April  8,  1889. 

In  the  other  states  named,  the  city's  population  does  not 
have  to  reach  the  100,000  home  rule  mark  established  in 
Missouri.  In  Washington,  cities  of  20,000  or  more;  in  Cali- 
fornia, cities  over  3500,  and  in  Minnesota,  all  municipalities 
may  make  their  own  charters.  The  Louisiana  statute  adopts 
exactly  the  opposite  view  from  that  of  Missouri,  and  excludes 
New  Orleans  from  the  privileges  of  home  rule,  apparently 
deeming  large  population  a  disqualification,  or  perhaps  an 
extra  enticement  for  the  complete  retention  of  legislative  man- 
agement. On  petition  of  a  majority  of  the  property  owners 
of  any  city  or  town  (except  New  Orleans)  to  the  mayor  and 
council  of  such  city  or  town,  praying  a  referendum  on  a  new 
charter  (a  copy  of  which  must  accompany  the  petition),  a  vote 
is  to  be  taken,  and  if  adopted  it  is  to  be  the  charter  of  the  city 
or  town.    (Laws  of  La.,  1896;  No.  135,  p.  190.) 

By  the  amendment  to  article  IV.  of  the  constitution  pro- 
posed by  the  legislature  in  1895,  and  adopted  by  the  people 
in  1896,  any  city  or  village  in  Minnesota  may  frame  a  charter 
for  itself  consistent  with  and  subject  to  the  laws  of  the  state. 
The  legislature  is  to  provide  for  a  board  of  15  freeholders  to 
be  appointed  by  the  district  judges  of  the  judicial  district  to 
which  the  municipality  belongs.  The  charter  proposed  by 
such  board  must  be  submitted  to  the  people  and  adopted  by 
4/7  of  the  qualified  electors  voting.    The  charter  does  not  re- 


HOME    RULE    FOR    OUR   CITIES.  417 

quire  legislative  approval;  but  "before  any  city  shall  incor- 
"porate  under  this  act,  the  legislature  shall  prescribe  by  law 
"the  general  limits  within  which  such  charter  shall  be 
"framed."  The  board  of  freeholders  is  permanent  and  amend- 
ments to  the  charter  are  to  be  proposed  by  it,  and  accepted  by 
3/5  of  the  electors  voting. 

In  1897,  chap.  255,  the  legislature  enacted  that  the  judges  should 
appoint  freeholders  "whenever  requested  by  an  ordinance  passed  by 
"the  common  council  of  any  city,  or  village,  or  by  petition  signed 
"by  at  least  8  per  cent,  of  the  legal  voters  thereof,"  and  that  the 
charter  might  be  so  framed  as  to  give  the  city  control  of  street  fran- 
chises, provided  that  no  perpetual  franchise  or  privilege  shall  ever 
be  granted,  nor  shall  any  exclusive  franchise  or  privilege  be  granted 
unless  the  grant  shall  be  submitted  to  the  people  and  approved  by 
a  majority  of  the  electors  voting,  and  even  then  the  grant  must  not 
be  for  a  longer  period  than  ten  years.  (The  recent  act.  chap.  351, 
1899,  confirms  these  franchise  provisions,  but  makes  the  petition 
percentage  10  instead  of  8,  and  drops  the  clause  relating  to  request 
of  the  common  council.) 

The  legislature  of  1897  proposed  a  new  amendment  limit- 
ing the  term  of  the  freeholders  to  six  years,  and  providing  that 
charter  amendments  should  be  submitted  to  the  people  upon 
petition  therefor,  signed  by  5  per  cent,  of  the  legal  voters  of 
the  municipality.     (Adopted  by  the  people  Nov.,  1898.) 

This  gives  the  people  a  strong  initiative — 10  per  cent,  can 
compel  the  making  and  submitting  of  a  charter,  and  5  per 
cent,  can  secure  the  submission  of  an  amendment  to  it. 

In  any  city  of  Washington  state  having  more  than  20,000 
people,  the  legislative  authority  of  the  city  may  order  an 
election  for  the  choice  of  15  freeholders,  who  must  convene 
within  10  days  and  prepare  a  charter  "consistent  with  and  sub- 
ject to  the  constitution  and  laws  of  the  state,"  which  charter 
shall  be  published  in  two  newspapers  in  the  city  for  at  least 
30  days  before  submission;  and  if  a  majority  of  the  voters  of 
the  city  ratify  the  proposed  charter,  it  supersedes  the  existing 
charter  including  amendments  thereto,  and  all  special  laws 
inconsistent  with  the  said  new  charter.  It  may  be  amended 
by  proposal  of  the  legislative  authority  of  the  city,  published 
as  above  and  adopted  by  a  majority  of  the  voters  (Wash. 
Const.  1890,  Art.  XL  §10).  For  citizens'  initiative  see  p. 
435. 

27 


418  THE   BONDAGE    OF    CITIES 

The  favorable  experience  of  St.  Louis  caused  an  effort  m 
the  California  Constitutional  Convention  of  1879  to  secure 
similar  privileges  of  self-government  for  San  Francisco.  At 
that  time  the  charter  of  San  Francisco  was  a  volume  of  319 
pages  of  fine  print.  Originally,  it  covered  only  31  pages,  but 
more  than  100  supplemental  acts  had  been  passed  leading  to 
much  confusion  and  numerous  evils.  Many  of  these  acts,  says 
Oberholtzer,  had  been  passed  in  the  interests  of  single  indi- 
viduals and  corporations.  Half  a  dozen  men  framed  them 
and  took  them  to  Sacramento,  and  had  them  passed  without 
the  wish,  and  often  without  even  the  knowledge,  of  the  people 
or  even  the  officers  of  the  city.* 

Those  in  the  convention  who  opposed  home  rule  declared 
that  San  Francisco  would  break  loose  from  the  rest  of  the  state 
and  set  up  an  independent  government  of  its  own.  "This  is  the 
boldest  kind  of  an  attempt  at  secession,"  they  said,  and  offered 
an  amendment  that  the  state  should  give  the  city  all  the  privi- 
leges and  consideration  accorded  the  most  favored,  "foreign 
"nations,  and  should  provide  a  duly  accredited  minister  as 
"representative  of  the  state  to  the  city." 

In  spite  of  all  opposition,  the  California  constitution  of 
1879,  Art.  XI.  §8,  permitted  any  city  of  more  than  100,000 
population  to  elect  15  freeholders  to  frame  a  charter  to  be 
published  in  two  local  papers  for  20  days,  submitted  to  the 
people  within  30  days  after  the  ceasing  of  such  publication, 
adopted  by  a  majority  of  those  voting,  and  approved  by  the 
legislature.  Amendments  can  be  made  at  intervals  of  not  less 
than  two  years  by  proposals  submitted  by  the  legislative  au- 
thority of  the  city  to  its  voters  and  ratified  by  3/5  of  the  quali- 
fied electors  voting,  f  and  approved  by  the  legislature.  In 
1887,  the  privilege  of  home  made  charters  was  extended  by 
constitutional  amendment  to  all  cities  over  10,000,  and  in 
1890  all  cities  above  3500  were  admitted  to  freehold  charter 
privileges.  The  legislature  must  approve  or  reject  the  charter 
as  a  whole. 

*  B.  P.  Oberholtzer  In  Annals  of  the  Amer.  Acad,  of  Pol.  and  SoclaJ 
Science,   Vol.  3,   p.  736,  et  aeq. 

t  At  the  Extra  Session  in  1000  the   Legislature    proposed    an    amendment 
to  g8  changing  the  requirement  of  a  three-fifths  vote  for  charter  amend 
a  majority  vote. 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  419 

Under  these  laws,  St.  Louis,  Kansas  City.  San  Francisco, 
Sacramento,  Oakland,  Los  Angeles,  Stockton,  San  Diego, 
Seattle,  Tacoma,  Dnlntli,  St.  Paul,  etc.,  have  established  char- 
ters of  their  own  making. 

The  St.  Louis  charter  gives  the  city  power  to  grant  fran- 
chises, construct  street  railways,  buy  and  hold  property,  real 
and  personal,  to  be  used  for  the  erection  of  water  works,  or 
gas  works,  to  supply  the  city  with  water,  or  light,  for  the 
establishment  of  hospitals,  or  poor  houses,  etc.,  or  for  any 
other  purpose;  secures  the  local  election  or  appointment  of 
the  city  officers  required  by  the  charter;  and  provides  that 
amendments  to  the  charter  shall  be  submitted  to  the  people* 
separately.  The  people  have  no  initiative,  however,  as  to 
amendments,  and  neither  initiative  nor  referendum  as-  to 
ordinances. 

In  the  Los  Angeles  charter,  the  23d  corporate  power  is  as 
follows : — 

"To  exercise  all  municipal  powers  necessary  to  the  com- 
"plete  and  efficient  management  and  control  of  the  municipal 
"property,  and  for  the  efficient  administration  of  the  muni- 
cipal government,  whether  such  powers  be  expressly  enumer- 
ated or  not,  except  such  powers  as  are  forbidden  or  are  con- 
"trolled  by  general  law."  That  is  suggestive  of  the  principle 
I  have  spoken  of  as  the  Manhood  rule,  but  the  explicit  separ- 
ation of  municipal  and  state  affairs,  and  exclusion  of  the 
legislature  from  the  distinctively  municipal  field  are  still  miss- 
ing, and  a  strict  construction  of  such  indefinite  phrases  is  apt 
to  take  the  life  and  liberty  out  of  these  broad  clauses. 

The  new  charter  adopted  by  the  voters  of  San  Francisco  in 
May,  1898,  Art.  II.,  Chap.  1,  §13,  provides  that  "upon 
"petition  signed  by  a  number  of  voters  equal  to  15  per  cent, 
"of  the  votes  cast  at  the  last  election,  asking  that  an  ordinance 
"to  be  set  forth  in  such  petition  be  submitted  to  the  voters, 
"the  Board  of  Election  Commissioners  must  submit  such  pro- 
"posed  ordinance  to  the  vote  of  the  electors  at  the  next  elec- 
tion." 

The  initiative  and  referendum  upon  amendments  to  the 
charter  is  also  secured  to  the  voters  thru  a  similar  15  per 
cent,  petition.    (§22.)     The  purchase  of  land  more  than  $50,- 


420 


MUNICIPAL  LIBERTY. 


000  in  value,  the  lease  or  sale  of  any  public  utility,  or  the 
grant  of  any  franchise  for  the  supply  of  light  or  water  must 
be  submitted  to  the  electors — no  petition  is  necessary.  (§21.) 
The  people,  I  hope,  will  use  their  initiative  to  secure  an  amend- 
ment placing  street  railway  and  other  important  franchises 
on  the  compulsory  referendum  list.  The  granting  of  fran- 
chises is  in  the  hands  of  the  city  (Art.  II,  Chap.  I,  §  13,  Chap. 
II.,  §§6,  7,  etc.)  and  Art.  XII.,  p.  124,  entitled,  "Acquisition 
of  Public  Utilities/'  opens  with  this  remarkable  passage: — 

"It  is  hereby  declared  to  be  the  purpose  and  intention  of 
"the  people  of  the  city  and  county  that  its  public  utilities  shall 
"be  gradually  acquired  and  ultimately  owned  by  the  city  and 
"county.  To  this  end,  it  is  hereby  ordained" — then  follow 
provisions  that  upon  a  15  per  cent,  petition  favoring  the  acqui- 
sition of  any  public  utility,  the  Board  of  Supervisors  shall  im- 
mediately take  steps  to  procure  plans  and  estimates  of  cost  and 
enter  into  negotiations  for  the  permanent  acquisition  of  such 
utility  by  construction,  condemnation,  or  purchase,  so  that  it 
may,  within  six  months  after  said  petition,  formulate  a  pro- 
position to  be  submitted  to  the  voters.  Or,  the  supervisors 
may  themselves  pass  an  ordinance  embodying  the  idea  of  the 
petition. 

There  is  another  clause  that  does  not  require  a  petition  for 
public  ownership  to  put  it  in  operation.  It  is  to  the  effect  that 
"within  one  year  of  the  date  the  charter  takes  effect,  and  at 
"least  every  two  years  thereafter,  till  the  object  of  this  article 
"shall  have  been  fully  attained,  the  supervisors  must  procure 
"plans  and  estimates  of  the  actual  cost  of  the  original  con- 
struction and  completion  by  the  city  of  water  works,  gas 
works,  electric  light  works,  steam,  water  and  electric  power 
works,  telephone  lines,  street  railroads,  and  such  other 
public  utilities  as  the  supervisors  or  the  people  by  petition 
may  designate." 

Article  XIII,  "Civil  Service,"  requires  the  mayor  to 
appoint  three  persons  "known  to  be  devoted  to  the  principles 
of  civil  service  reform"  to  act  as  a  civil  service  commission,  and 
no  two  of  the  commissioners  can  at  any  time  belong  to  the 
same  political  party.     These  commissioners    are    to    classify 


LOCAL  GOVEBNMENT  BY  THE  LOCAL  PEOPLE.       421 

employments,  and  establish  "public,  free,  practical,  competi- 
"tive  examinations."  Each  appointment  to  the  classified 
service  must  be  made  from  a  list  of  three  applicants  having  the 
highest  rank  for  excellence  in  the  examinations  for  health, 
capacity  and  fitness  for  the  duties  of  the  position  to  which  they 
aspire.  The  appointment  is  on  probation  for  six  months.  At 
or  before  the  expiration  of  this  period,  the  head  of  the  depart- 
ment or  office  in  which  the  candidate  is  employed  may,  with 
the  consent  of  the  commissioners,  discharge  him  on  assigning 
in  writing  to  the  commissioners  his  reason  for  so  doing.  After 
the  period  of  probation,  the  appointee  "cannot  be  removed, 
"except  for  cause,  upon  written  charges,  and  after  an  oppor- 
tunity to  be  heard  in  his  own  defence,"  the  trial  to  be  before 
the  commissioners,  or  some  officer  or  board  appointed  by  them. 

"Laborers"  are  not  examined,  but  appointed  according  to 
priority  of  application. 

The  officers  put  in  the  classified  service  make  a  long  list, 
including  the  county  clerk,  assessor,  tax  collector,  sheriff, 
auditor,  the  board  of  public  works,  the  police  department,  the 
fire  department,  the  board  of  election  commissioners,  board  of 
health,  and  all  boards  or  departments  controlling  public  utili- 
ties. 

A  splendid  charter:  civil  service,  public  ownership,  initia- 
tive and  referendum,  and  a  very  substantial  degree  of  home 
rule — three  cheers  for  San  Francisco — and  yet  some  of  the 
reformers  of  'Frisco  complain  that  the  charter  is  imperfect; 
very  well,  friends,  you  have  the  initiative;  educate  the  voters 
and  perfect  it.  What  more  do  you  want  than  the  initiative, 
and  a  free  press?  You  have  the  future  in  your  own  handa 
subject  only  to  the  possible  contingency  of  adverse  legislation. 

The  constitutions  of  California,  Washington,  etc.,  and 
the  charters  of  many  municipalities  contain  a  clause  de- 
claring that:  "Any  county,  city,  town  or  township  may 
"make  and  enforce  within  its  limits,  all  such  local,  police,  sani- 
"tary,  and  other  regulations  as  are  not  in  conflict  with  general 
"laws."  (Cal.  Const.  Art.  XI.,  §11.)  This  gives  munici- 
palities considerable  freedom,  whether  they  have  freehold 
charters  or  not;  in  fact,  so  far  as  regulations  are  concerned,  it 


422 


THE    CITY    Full    THE    PEOPLE 


is  the  Manhood  Principle  itself.  But  the  word  "regulations" 
is  not  broad  enough  to  cover  radical  changes  of  structure  or 
policy,  or  purchase  or  sale  of  large  properties,  or  launching 
into  large  business  enterprises.1  If  the  clause  gave  the  city 
power  to  do  any  act  not  in  conflict  with  general  law,  we 
should  have  the  Manhood  Principle. 

Section  25  of  Art.  IX.  of  the  Missouri  constitution  says 
that  "notwithstanding  the  provisions  of  this  article  the  general 
"assembly  shall  have  the  same  power  over  the  city  and  county 
"of  St.  Louis  that  it  has  over  other  cities  and  counties  of  this 
""state."  That  is,  it  has  almost  unlimited  power  to  pass 
general  laws,  and  is  not  entirely  debarred  from  special  legis- 
lation. By  Art.  IV.,  §53,  however,  the  general  assembly  is 
forbidden  to  pass  any  local  or  special  law: 

Regulating-  the  affairs  of  counties,  cities,  townships,  wards,  or 
school  districts; 

Authorizing-  the  laying-  out,  opening,  altering,  or  maintaining, 
roads,  highways,  streets,  or  alleys; 

Vacating*  roads,  town  plots,  streets,  or  alleys; 

Relating  to  ferries  or  bridges,  except  interstate; 

Incorporating  cities,  towns,  or  villages,  or  changing  their  char- 
ters; 

For  the  opening  and  conducting  of  elections,  or  fixing  or  chang- 
ing the  places  of  voting; 

Creating  offices,  or  prescribing  the  powers  and  duties  of  officers 
in  municipalities: 

Regulating  public  schools; 

Exempting  property  from  taxation; 

Regulating  labor,  trade,  money,  or  manufacturing; 

Creating  corporations,  or  amending,  renewing,  extending,  or  ex- 
plaining the  charters  thereof; 

0)  Regulations  will  not  cover  an  attempt  to  change  the  charter,  or  abro- 
gate a  fire  department  established  by  an  act  which  forms  part  of  the  charter. 
<People  v.  Wiltshire,  96  Cal.  605,  1892).  Neither  will  the  clause  justify  a 
violation  of  fundamental  principles  of  justice  and  liberty.  An  ordinance  pro- 
hibiting the  carrying  on  of  a  laundry  in  town,  except  in  specified  blocks,  and 
with  a  written  permit  upon  consent  in  writing  of  a  majority  of  the  real 
•property  owners  in  the  block,  was  held  to  be  beyond  the  authority  conferred 
by  the  clause,  such  ordinance  being  considered  an  unreasonable  interference 
with  the  inalienable  right  to  engage  in  a  lawful  occupation,  and  with  the 
right  of  the  owner  of  property  to  devote  it  to  a  lawful  purpose.  (Ex  parte 
Sing  Lee,  96  Cal.  354,  1892.)  But,  the  courts  have  held  the  clause  to  be  "a 
broad  i'ar  reaching  power,  enabling  cities  to  pass  any  regulation  not  In  con- 
flict with  general  laws  or  fundamental  principles  of  constitutional  liberty. 
iEx  parte  Lacey,  108  Cal.  326,  328,  sustaining  an  ordinance  prohibiting  steam 
shoddy  machines  or  steam  beating  machines  within  100  feet  of  any  church, 
or  school-house,  residence  or  dwelling.)  The  clause  was  intended  to  make 
•cities  more  Independent  of  legislation.  (In  re  Guerrero,  69  Cal.  88;  in  re 
Stuart.  (51  Cal.  374.)  Under  it  an  ordinance  of  San  Francisco  regulating  the 
«ale  of  liquors,  was  held  good  (Ex  parte  Hayes,  98  Cal.  555);  and,  another 
ordinance  roirnlntine:  the  snip  of  opium,  and  prohibiting  It  except  under 
proper  restriction,   was  sustained   (Ej  parte  Hong  Shen,    same  volume). 


HOME   RULE    FOR   OUR   CITIES.  423 

Graii ting-  to  any  corporation,  association,  or  individual  any  special 
or  exclusive  right,  privilege,  or  immunity,  or  to  any  corporation, 
association,  or  individual,  the  right  to  lay  down  a  railroad  track; 

Legalizing-  the  unauthorized  or  invalid  acts  of  any  state  or 
municipal   officer; 

In  all  other  cases  where  a  general  law  can  be  made  applicable, 
no  local  or  special  law  shall  be  enacted;  and  whether  a  general  law 
could  have  been  made  applicable  in  any  case  is  hereby  declared  a 
judicial  question,  and  as  such  shall  be  judicially  determined,  with- 
out, regard  to  any  legislative  assertion  on  that  subject. 

Nor  shall  the  general  assembly,  indirectly,  enact  such  special  or 
local  law  by  the  partial  repeal  of  a  general  law,  but  laws  repealing* 
local  or  special  acts  may  be  passed. 

There  are  other  provisions  against  special  legislation,  but 
these  are  all  that  materially  affect  municipalities.  One  might 
think  that  local  legislation  had.  been  abolished,  but  that  is  not 
quite  true.  At  the  last  session  (1897)  the  Missouri  legislature 
passed  a  special  act  defining  the  boundaries  of  the  city  of 
Palmyra,  and  another  to  give  the  city  of  Poplar  Bluff  au- 
thority to  vacate  a  cemetery. 

Section  54  of  Article  IV.,  provides  that  NO  local  or  special 
law  shall  be  passed  unless  a  notice  of  it  stating  its  substance 
shall  be  published  in  the  locality  affected  at  least  thirty  days 
before  the  introduction  of  the  bill  in  the  general  assembly. 

The  constitutions  of  all  the  other  four  states  we  have  been 
considering  provide  quite  fully  against  special,  legislation, 
largely  in  the  same  words  as  those  just  quoted  from  Missouri, 
so  that  the  freehold  charters  are  not  likely  to  be  much  inter- 
fered with  except  by  general  legislation.1  They  are  clearly 
subject  to  this  to  some  extent  in  all  the  states  named,  and  in 
some  of  them,  at  least,  no  portion  of  the  municipal  business, 

(*)  "A  law  is  general  and  constitutional  when  it  applies  equally  to  all 
persons  embraced  iu  a  class  founded  upon  some  natural  or  intrinsic  or  con- 
stitutional distinction,  it  is  not  general  if  it  confers  particular  privileges,  or 
imposes  peculiar  disabilities  or  burdensome  conditions  in  the  exercise  of  a 
common  right  upon  a  class  of  persons  arbitrarily  selected  from  the  general 
body  of  those  who  stand  in  precisely  the  same  relation  to  the  subject  of  the 
law."  City  of  Pasadena  v.  Stimson,  91  Cal.  238,  251;  see  also  Rauer  v.  Wil- 
liams, 118  Cal.  401. 

Legislation  affecting  cities  having  150,000  or  more  inhabitants  is  an  im- 
proper attempt  by  the  act  itself  to  create  a  class  of  municipal  corporations  for 
a  special  purpose,  without  reference  to  the  existing  classification  by  general 
law,  and  is  local  and  special  legislation.    Denman  v.  Broderick,  111  Cal.  96. 

Classification  must  be  founded  on  differences  defined  by  the  constitution, 
or  which  are  natural,  and  suggest  a  reason  which  might  rationally  be  held 
to  justify  the  diversity  in  the  legislation.  In  a  general  law,  none  must  be 
omitted  that  stand  on  the  same  footing  regarding  the  subject  of  legislation. 

Legislatures  cannot,  by  special  act,  create  a  class  of  cities  of  a  population 
between  10,000  and  25,000  for  the  purpose  of  increasing  the  salaries  of  pollce- 
ner  in  a  particular  city;  act  void,  Darey  v.  San  Jose,  104  Cal.  642. 


424  THE   BONDAGE'  OF   CITIES 

however  purely  local  it  may  be,  is  secure  from  legislative  con- 
trol.1 The  freehold  charters  themselves  may  be  changed  by 
the  legislature,  and  the  constitutional  provision  as  to  amending 
charters  at  intervals  of  not  less  than  two  years  by  proposal  sub- 
mitted to  the  voters  by  the  city  authorities  does  not  prevent 
the  Legislature  from  changing  the  charter  by  general  legis- 
lation within  the  two  years.2  In  California,  the  cities  making 
home  charters  found  themselves  so  hampered  by  general  laws 
that  they  secured  a  new  amendment  to  the  constitution.  By 
the  constitution,  the  charters  were  to  supersede  existing 
charters  and  all  special  laws  inconsistent  with  such  charters. 
In  Davies  v.  Los  Angeles,  86  Cal.  37,  40,  it  was  held  that  a 
general  law  relating  to  the  opening  and  widening  of  streets 

1  Ewing  v.  Hoblitzelle,  85  Mo.  64,  78,  general  law  about  elections  in. 
cities  of  100,000  or  more,  was  held  to  apply  to  St.  Louis  in  spite  of  its  free- 
hold charter,  and  it  overruled  the  provisions  of  this  charter  as  to  the  regis- 
tration of  voters.     See  also  122  Mo.  68  and  126  Mo.  652. 

In  Kansas  City  v.  Scarritt,  127  Mo.  642,  however,  the  court  distinguishes 
these  cases  and  others  dealing  with  laws  affecting  state  interests  from  cases 
dealing  with  laws  affecting  local  interests,  and  an  act  giving  cities  organized 
under  Art.  9,  §16  (the  freehold  charter  clause  of  the  constitution),  a  right  to 
take  land  for  parks  and  boulevards  thru  a  board  of  park  commissioners,  was 
held  void  as  .amounting  to  a  legislative  amendment  of  the  freehold  charter  in 
respect  to  internal  municipal  affairs.  The  court  said  that  under  the  consti- 
tution the  freehold  charter  could  be  amended  by  vote  of  the  people  "and  not 
otherioise."  It  remarked  that  tbe  legislature  might  pass  general  laws  as  to 
state  interests  and  they  would  be  paramount  to  the  freehold  charters,  and 
referred  to  85  Missouri,  etc.,  just  cited,  but  said:  "These  decisions  should 
"not  be  held  to  warrant  the  exercise  of  state  legislative  power  over  such 
"city  charters,  so  far  as  relates  to  the  government  of  subjects  of  merely 
local  and  municipal  concern."  This  distinction  and  decision  In  127  Mo. 
excludes  the  legislature  from  altering  the  freehold  charters  (even  by  general 
laws)  in  respect  to  matters  of  purely  local  concern.  That  ought  to  be  the 
law,  but.  I  doubt  if  it  is  as  ret,  unless  the  courts  are  ready  to  carry  the 
Michigan  doctrine  to  Its  logical  limit.  In  view  of  the  fact  that  the  constitution 
says  that  the  freehold  charters  shall  "always  be  subject  to  the  laws  of  the 
state."  it  seems  clear  that  the  "not  otherwise"  in  the  clause  relating  to 
charter  amendments  must  be  confined  to  amendments,  as  such.  The  effect 
upon  a  charter  by  reason  of  its  subjection  to  a  general  law  of  the  state  is 
not  called  an  amendment  by   the  constitution,   and  the  court  in  doing  so 

ffoes  outside  of  and  beyond  the  constitution,  and  makes  a  constitution  for 
tself.  There  is  no  distinction  in  the  constitution  between  general  laws 
affecting  state  Interests  and  general  laws  affecting  municipal  interests— the 
charters  are  subject  to  all  general  legislation.  If  a  law  affecting  the  charter 
ts  an  amendment  and  void,  as  a  violation  of  the  provision  that  the  charter 
shall  only  be  amended  by  vote  of  the  people,  then  the  law  considered  in 
85  Mo.,  which  concerned  elections  and  affected  the  charters  was  an  amend- 
ment and  void  as  a  violation  of  the  said  provision,  by  which  rule  the  legis- 
lature could  pass  no  law  affecting  the  freehold  charters,  and  the  provision 
subjecting  those  charters  to  state  legislation  would  be  abrogated.  I  wish 
the  decision  in  127  Mo.  were  good,  but  I  fear  it  is  not.     At  least  the  reason 

f;iven  by  the  court  will  not  stand.  If  the  court  had  based  its  decision  on 
he  broad  principle  of  inherent  right  of  local  self-government  carrying  out 
the  line  of  thought  suggested  and  acted  upon  by  the  Michigan  and  Indiana 
courts,  we  might  hope  for  much  from  the  decision ;  but  as  it  is  it  is  not  likely 
to  be  of  much  benefit. 

None  of  the  other  constitutions  in  the  freehold  charter  states  are  like 
the  Mo.  constitution  in  the  "not  otherwise"  clause,  except  the  Constitution 
of  Minnesota,  which  says  that  the  freehold  charter  may  be  amended  by  a 
vote  of  "three-fifths  of  the  qualified  voters  of  such  city  or  village  voting  at 
the  next  election,  and  not  otherwise;  but  such  charter  shall  always  be  in 
harmony  with,  and  subject  to  the  constitution  and  laws  of  the  State  of 
Minnesota." 

'People   v.    City   of   Coronado,    100   Cal.    571    (1898), 


TO  POLITICIANS  AND  MONOPOLISTS  MUST  CEASE.         425"' 

controlled  the  city  in  spite  of  its  freehold  charter.     In  San? 

Diego  all  street  work  had  to  be  done  under  state  law,  the  city 

police  court  was  deprived  of  its  charter  jurisdiction,  and  the 

board  of  education  could  not  operate  according  to  the  charter, 

Finding  that  this  unlimited  subjection  to  general  laws  largely  ~~ 

nullified  the  advantages  of  the  new  charters,  the  cities  united 

in  a  demand  for  a  new  amendment  leaving   out    the   word 

"special."    The  adoption  of  this  change  by  a  vote  of  3  to  1  was- 

declared  Dec.  30th,  1892.     And  now  §8  of  Art.  XI  of  the 

Cal.  constitution  provides  that 

"Any  city  containing-  a  population  of  more  than  3500  inhabitant* 
may  frame  a  charter  for  its  own  government  consistent  with  and 
subject  to  the  constitution  and  laws  of  this  state,"  which  charter  "shall 
become  the  organic  law  thereof,  and  supersede  any  existing  charter 
and  all  amendments  thereof,  and  all  laws  inconsistent  with  such 
charter."  By  the  amendment  of  Nov.  3,  1896,  "cities  and  towns 
heretofore  or  hereafter  organized,  and  all  charters  thereof  framed' 
or  adopted  by  authority  of  this  constitution,  except  in  municipal' 
affairs,  shall  be  subject  to  and  controlled  by  general  laws."  (Sec.  6, 
Art.  XL) 

This  seems  like  real  home  rule,  but  the  sphere  of  "muniei*- 
pal  affairs"  is  not  defined  and  the  whole  matter  is  rather  in- 
definite.* 

It  is  quite  clear  as  to  all  the  States  named  except  California 
(and  possibly  Missouri)  that  the  legislature  can  modify,  limit 
or  annul  the  powers  and  privileges  of  cities  under  their  free- 
hold charters,  but  it  is  equally  clear  that  the  charter  liberties 
will  very  soon  gather  about  them  a  public  sentiment  that  will 
protect  them,  and  lead  in  the  course  of  time  to  an  efficient  de- 
mand for  a  specific,  definite,  constitutional  division  between' 
state  and  municipal  functions.  A  city  that  enjoys  self-govern- 
ment in  local  business  for  a  few  years,  originating  and  decid- 
ing for  itself,  without  legislative  intervention,  will  soon  come 
to  regard  the  privilege  as  an  inalienable  right.  The  limitation- 
of  legislation  to  general  laws  tends  to  prevent  unjust  and  op- 
pressive interference  in  municipal  affairs  because  a  bad  general' 
bill  having  a  wider  incidence  will  rouse  more  opposition  than 
a  special  act.    In  every  way  the  provisions  of  the  constitutions 


*  The  charter  is  to  be  consistent  with  and  subject  to  the  laws  of  the  state,  :u\< 
yet  it  is  to  supersede  all  laws  inconsistent  with  it,  and  later,  the  charter,  excepts 
In  municipal  affairs,  is  to  be  controlled  by  gene-  al  laws.  Perhaps  a  fair  interpre- 
tation would  be  that  the  charter  is  to  supersede  all  existing  laws  inconsistent  wit  !• . 
it,  but  is  to  be  subject  to  svbseqiwit  general  laws  except  in  respect  to  distinctly 
local  matters. 


426  MUNICIPAL  LIBERTY. 

wider  discussion  appear  to  constitute  a  marked  advance,  and 
to  lead  inevitably  to  a  strong  acceleration  of  the  movement 
toward  assured  borne  rule  in  local  municipal  concerns,  with 
free  initiative  under  general  law  along  the  whole  line. 

Thru  the  growth  of  public  sentiment,  crystallizing  finally 
into  constitutional  enactment,  the  control  of  streets  and  local 
franchises,  water  works,  gas  works,  electric  light  plants,  street 
railways,  telephones,  fire  departments,  bath-houses,  lodging- 
houses,  hospitals,  parks,  market-houses  and  other  business  and 
proprietary  matters  of  peculiarly  local  character,  will  be  se- 
cured to  the  municipality  free  of  legislative  intervention,  sub- 
ject only  to  the  requirements  of  the  initiative  and  referendum, 
the  broad  principles  of  justice  and  liberty  that  underlie  and 
permeate  our  institutions,  and  the  regulative  rules  to  secure 
co-ordination,  uniformity,  symmetry,  equalization,  etc.,  that 
are  or  may  be  incorporated  in  our  constitutional  law. 

Thru  and  beyond  the  guaranteed  field  of  exclusive  local 
sovereignty  will  go  the  all  embracing  right  of  free  initiative 
and  decision  except  where  state  or  national  law  forbids.  By 
these  two  improvements,  with  reasonable  guards  against 
•special  legislation,  municipal  independence  will  be  achieved. 

POINTS  FOE  CHARTER  LAWS. 

It  is  probable  that  in  the  near  future  other  states  will  adopt 
constitutional  provisions  in  favor  of  home  rule.  In  view  of 
the  movement  along  the  Missouri  line,  it  is  well  to  note  that : 

(1)  The  initiative  in  calling  an  election  to  choose  free- 
holders to  make  a  charter  should  not  rest  entirely  with  the 
city  officials — the  people  should  be  able  by  petition  to  start  the 
ball,  as  in  Minnesota  and  Louisiana. 

(2)  The  charter  should  be  required  to  contain  provisions 
securing  the  initiative  and  referendum  on  amendments  and 
ordinances. 

(3)  If  the  approval  of  the  legislature  is  required,  as  in  Cali- 
fornia, the  constitution  ought  to  declare  that  the  charter,  when 
approved,  should  be  deemed  a  contract  and  protected  as  such. 

(4)  An  effort  should  be  made  to  get  the  constitution  not 
merely  to  authorize  municipalities  to  make  their  own  charters, 


LOCAL  GOVERNMENT    BY   THE    LOCAL    PEOPLE.  427 

subject  to  the  general  law  of  the  state,  but  to  define  a  certain 
area  of  local  business  in  which  the  city  should  be  supreme,  and 
from  which  the  legislature  should  be  absolutely  excluded  ex- 
cept so  far  as  it  may  be  specifically  empowered  by  the  consti- 
tution; and  in  addition  to  this  it  should  authorize  cities  and 
towns  under  proper  restraint  in  respect  to  the  referendum,  etc., 
to  act  in  public  matters  beyond  the  specified  area,  in  any  way 
they  may  see  fit  so  long  as  they  do  not  infringe  the  law  above 
them.  This  would  open  the  doors  of  freedom  wide  to  all 
municipalities  whether  they  made  new  charters  or  not,  and 
give  them  a  limited  field  of  assured  self-government  beyond 
the  interference  of  the  legislature — a  bit  of  real  sovereignty, 
or  home  rule  de  jure,  instead  of  mere  home  rule  de  facto  at 
the  pleasure  of  the  legislature. 

(5)  The  constitution  should  contain  full  safeguards  against 
improper  special  legislation. 

SUMMING  UP  WE  FIND  THAT  I 

The  cure  for  the  evils  of  excessive  dependence  is  a  reason- 
able independence.  The  remedy  for  municipal  subjection  is 
municipal  sovereignty.  A  city  has  a  right  to  manage  its 
local  business  without  interference,  and  should  be  free  to  act 
outside  the  distinctive  local  sphere  so  long  as  it  does  not  in- 
fringe a  positive  law  of  state  or  nation. 

The  best  method  of  establishing  Home  Rule  would  be  thru 
Constitutional  provisions: 

Drawing  a  line  between  state  affairs  and  local  interests  as 
clearly  as  the  line  between  state  and  federal  intersts  is  drawn 
in  the  National  Constitution ; 

Excluding  the  legislature  from  the  field  of  local  municipal 
business,  so  that  the  city  may  be  sovereign  in  its  own  peculiar 
sphere  just  as  the  state  and  nation  are  sovereign  in  their 
spheres;  free  to  act  in  its  own  concerns,  subject  only  to  broad 
limitations  such  as  those  applied  to  states  in  the  federal  con- 
stitution ; 

Affording  proper  safeguards  against  special  legislation,  even 
in  matters  wherein  municipal  life  merges  into  state  life; 

Guaranjteeing  the  local  selection  of  local  officers: 


428 


THE    CITY    FOR   THE    PEOPLE. 


Securing  to  every  city  and  town  the  right  to  do  any  acl 
whatever,  whether  inside  the  field  of  local  sovereignly  or  be- 
yond it,  so  long  as  it  does  not  conflict  with  state  and  national 
law;  reversing  the  present  rule,  and  instead  of  the  principle 
that  a  city  can  do  nothing  without  permission,  establishing 
the  principle  that  a  city  can  do  anything  unless  forbidden — 
a  difference  as  great  as  that  between  servitude  and  liberty ; 

And  according  to  every  municipality  the  right  to  frame  its 
own  charter; 

Thus  may  be  secured  a  reasonable  independence  for  muni- 
cipalities from  improper  legislative  control,  but 

Civil  service  regulations, 

The  Initiative  and  Referendum  upon  ordinances  and  charter 

provisions, 
And  the  public  ownership  of  monopolies 

must  be  established  also,  else  freedom  from  legislative  bossing 
may  mean  subjection  to  councils,  local  politicians  and  pri- 
vate corporations. 

Under  such  Home  Rule  provisions  each  city  and  town  might 
make  its  own  charter,  choose  its  own  officers  and  govern  itself 
subject  only  to  the  broad  limitations  of  state  and  national  law. 
Nothing  could  do  more  than  such  local  self-government  for 
the  cause  of  municipal  progress  and  purity.  And  on  that 
cause  hangs  the  future  of  the  Republic.  A  hundred  years  ago 
only  one-thirtieth  of  the  population  of  the  United  States  dwelt 
in  cities.  In  1890  one-third  of  our  people  were  in  cities  of 
more  than  8000  inhabitants.  It  will  not  be  long  before  half 
the  people  live  in  cities,  and  when  we  include  the  towns,  it 
appears  that  municipal  problems  already  affect  directly  at  least 
five-sixths  of  our  people,  and  indirectly,  but  nevertheless  most 
vitally,  all  the  rest. 

Dr.  Shaw,  who  is  probably  the  highest  authority  on  muni- 
cipal government  on  this  side  of  the  sea,  or  perhaps  in  the 
world,  has  expressed  himself  in  these  strong  words  i1 


(l)  In  the  last  few  years  municipal  home  rule  has  been  favored  by  several1 
other  writers  and  speakers  of  high  authority;  Dr.  Edward  Everett  Hale, 
Hon.  Seth  Low.  Senator  Fassett,  Prof.  F.  J.  Goodnow  of  Columbia,  Dr. 
James  of  Chicago  University,  and  E.  P.  Oberholtzer  being  among  the  number. 
Hon.  Seth  Low's  address  on  "Municipal  Home  Rule."  at  Brooklyn,  October 
6,  1882,  Dr.  Hale's  article  in  the  "Cosmopolitan,"  Vol.  16,  p.  736  (1894),  Prof. 
Goodnow's    "Municipal   Home    Rule,"  Macmillan  &   Co.,    1895,    OberboltzefB 


HOME   RULE   FOR   OUR   CITIES.  429 

"Good  government  and  progress  in  our  larger  cities  will 
l<e  greatly  aided  by  the  extension  of  their  powers  of  local  self- 
government,  or  the  establishment  of  municipal  home  rule,  so 
that  the  people  may  feel  that  they  have  their  own  municipah 
welfare  clearly  and  definitely  in  their  own  hands." 

And  again,  discussing  the  New  York  charter:  "We  shall 
never  reach  a  permanent  basis  in  this  country  until  we  have 
attained  simplicity  and  unity,  so  that  the  people  of  a  large 
town  may  feel  that  they  have  their  own  municipal  weal  or  woe 
clearly  and  definitely  in  their  own  hands.  Then  a  strong 
public  opinion  ivill  arise  to  protect  such  municipal  home 
rule,  and  with  or  without  constitutional  safeguards,  we  shall 
find  that  municipal  government  will  go  on  steadily." 

On  the  way  toward  the  solid  independence  outlined  above, 
a  number  of  partial  reforms  may  be  of  advantage.  When  it 
is  not  possible  to  get  a  whole  loaf,  half  a  loaf  is  better  than 
none. 

A.  Constitutional  provisions  may  be  adopted  covering  part 
of  the  ground.  This  has  been  done  to  a  considerable  extent 
already  as  is  shown  in  the  accompanying  diagrams. 

B.  The  Michigan  Doctrine  may  be  followed  by  the  courts 
of  other  states.  Efforts  to  secure  such  rulings  even  if  unsuc- 
cessful cannot  fail  fo  do  good  by  directing  attention  to  the 
fundamental  importance  of  local  self-government  and  the 
weighty  opinions  of  Judge  Cooley  and  others. 

C.  Broad  statutes  may  be  passed  giving  cities  larger  powers, 
especially  in  regard  to  the  granting  of  franchises,  and  the  right 


article  In  the  "Annals  of  the  Amer.  Academy  of  Political  and  Social  Science, 
the  Fassett  Report,  and  Dr.   Shaw's  "Municipal  Government,"  already  re- 
ferred to,  are  specially  valuable. 

At  the  convention  of  the  League  of  American  Municipalities,  held  at 
Detroit  in  August,  1898,  and  containing  mayors  and  aldermen  and  other 
officials  from  a  large  number  of  the  leading  cities  of  the  country,  the  principle 
of  municipal  home  rule  was  most  enthusiastically  and  almost  unanimously 
endorsed;  and  at  the  conference  of  the  National  Municipal  League,  held  at 
Indianapolis,  December,  1898,  a  committee  consisting  of  Dr.  Albert  Shaw, 
Clinton  Rogers  Woodruff,  Professor  Frank  J.  Goodnow,  Horace  E.  Denning, 
Chas.  Richardson,  Professor  Leo  S.  Rowe,  and  Geo.  W.  Guthrie,  reported  In 
favor  of  constitutional  amendments  giving  all  cities  of  25,000  people  the 
power  to  frame  their  own  charters,  restricting  state  action  to  matters  re- 
quiring state  uniformity,  and  forbidding  the  legislature  to  pass  acts  apply- 
ing to  single  cities  or  groups  of  cities  except  by  a  vote  of  the  cities  them- 
selves. The  committee  also  recommends  civil  service  reform,  a  single  council 
elected  for  6  years,  concentration  of  all  administrative  power  In  the  mayor, 
separation  of  legislative  and  administrative  powers,  and  constitutional  pro- 
visions preventing  councils  from  granting  franchises  for  more  than  21  years, 
and  requiring  Itemized  accounts  from  operating  companies.  Proportional 
representation,  the  initiative  and  referendum  and  the  recall,  and  some  other 
things  are  needed  to  make  the  list  a  perfect  one. 


430 


THE   BONDAGE    OF    CITIES 


to  own  and  operate  local  business  enterprises.  A  considerable 
movement  has  taken  place  in  this  direction  in  the  last  few 
years,  but  it  often  requires  a  hard  fight  to  pass  such  bills,  and 
they  are  apt  to  be  narrowed  in  scope,  and  their  usefulness  im- 
paired by  amendments  and  limitations  introduced  by  corporate 
influence.  Moreover,  they  are  subject  to  legislative  alter- 
ation or  repeal.  In  spite  of  all  their  imperfections,  however, 
they  are  very  important  aids  while  on  the  wray  to  solid  consti- 
tutional measures,  and  the  growth  of  public  sentiment  around 
them  gives  them,  in  the  course  of  time,  a  practical  stability 
much  greater  than  that  which  they  possess  theoretically. 

The  following  tables  with  their  explanations  afford  an  indi- 
cation of  the  present  condition  of  municipal  law  on  some  of 
the  most  important  lines: 

In  examining  the  tables  it  must  be  remembered  that  the 
finer  shades  of  legislation  are  not  indicated  in  them.  The 
crosses  in  each  column  represent  general  legislation  of  aome 
sort  in  reference  to  the  subject  stated  at  the  head  of  the  col- 
umn. But  the  cross  opposite  Missouri,  for  example,  in  a 
given  column  may  represent  a  very  different  law  from  that 
represented  by  another  cross  in  the  same  column  opposite 
Idaho  or  California.  Under  special  legislation  the  provisions 
are  for  the  most  part  quite  similar  down"  the  whole  length  of 
each  column,  the  wording  in  many  cases  being  identical;  yet 
even  here  there  are  some  differences,  especially  in  column  B 
(see  below).  It  is  in  columns  A,  K  and  L,  however,  that  the 
widest  variations  occur. 

I.  Constitutional  provisions  requiring  the  local  selection 
of  local  officers  are  of  great  importance.  In  Massachusetts. 
Pennsylvania,  Missouri,  Wisconsin,  etc.,  a  few  county  officers 
must  be  locally  chosen.  In  Ohio,  Georgia,  etc.,  county 
officers,  in  general,  are  to  be  elected  by  the  people  of  the 
county.  In  Minnesota,  county  and  township  officers  are  to  be 
locally  elected.  In  Kansas,  township  officers,  and  in  Ken- 
tucky, county  and  district  officers,  mayor  and  council  and 
police  judges  in  towns  and  cities  must  be  locally  elected.  In 
New  York  the  constitution  provides  that  municipal  officers 
shall  be  elected  by  the  electors  of  the  municipality,   or  ap- 


I* 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE. 


4;*1 


*     TABLE  I. 
MUNICIPAL    FREEDOM 

SECURED    BY   CONSTITUTIONAL  PROVISIONS 
(including  amendments  to  date). 


A 

B 

c 

D 

E 

F 

(i 

H 

T 

.7 

o    . 
+j  to 

a  u 
2.2   • 

L 

io 

4 

a. 

tn 
V| 

Forbidding  Special  Legislation. 

OtH 

E  E 

-a 

As  to  Franchises  and  Cor- 

in- 
states      ta  g 
and  dates  ot  I  g  a 

s  . 

o  2 

It 

JjjB 

O    M 

5, 

s 

a 

5  2. 

porate  Powers. 

Oi 

felt 

S  ►  o 

NH«g    S3 

c 
<5 

■  S3 

j?S«i 

pi 

Requiring  1 
or  appoint 
officers. 

ill 

o  *  — 

B 
o 

>-.  eg 

O 

H 

O    00 

a,* 

0 
H 

T3     . 

82 

o 
9 
u 

•el 

05 

o 

'3 

03 

2  =  * 

o  a  o 

°  o  * 

Sf  IB    O 

Sag" 

ill 

0 

3  "3 
S-S* 

O  3  u 

III 

5 

Hi 

SO     ' 

a,—  »- 
S3 

it* 

33  e 

M    =    ° 

u  Maine. ..1819 

X 

G  N.  H 1889 

ttVt 1793 

co 

£  Mass 1780 

CO 

X 

X 

.  R.  I 1842 

X 

X 

X 

y<  Conn 1875 

Xd 

— 

5  N.  Y.„...1895 

S 

X 

X 

X 

X 

X 

3  N.J. .....1875 

Xd 

X 

X 

X 

X 

X 

X 

X 

<u  Penna.  ..1874 

CO 

X 

X 

X 

X 

X           X 

X 

X 

X 

X 

t3  Del 1897 

CO 

2  Md 1867 

CO 

X 

8  VV.Va....l872 

cd 

X 

X 

x 

x 

X 

ja  Ohio 1857 

CO 

I    x 

X 

X.  Ind 18il 

D 

X 

X 

X 

X 

X 

.S  Ul 1870 

.  Mich 1850 

cd 

X 

X 

X         x 

X 

X 

X 

X 

I> 

X 

X 

5  Wise 184* 

CO 

X 

X 

X 

X 

SS  Minn....  1857     cd 

X 

X 

X 

,     X 

X 

X 

1     X 

Mo 1875 

X 

X 

1     X 

X          X 

|     X 

X 

X 

X 

X 

«  Iowa 1846 

X 

X 

X 

2  Kans 1859 

T 

X 

X 

3  Neb 1875 

cd 

X 

X 

X           X 

1    x 

X 

X 

3  S.  Dak.. .1889 

cd 

X 

X 

X 

X 

I    x 

X 

X 

N.  Dak..l889 

CO 

X 

X 

X 

X           X 

1    x 

X 

1    x 

«  Va 1869 

S 

1 

S  N.  Car...  1876 

cd 

X 

X 

s  8.  Car....l895 

X 

X 

X 

X 

■S  Ga 1877 

CO 

X 

X 

g  Fla 1885 

oB  Ala 1875 

cd 

X 

X 

X 

X 

cd 

X 

1 

X 

X 

A  Miss 15*90 

Xd 

X 

X           X 

I    X 

\     X 

X 

S  La 1879 

cd 

X 

X 

X 

X 

X 

X 

stat. 

o  Texas. ..1876 

cd 

X 

X 

X 

X 

X         x 

X 

2  Ark 1874| 

X 

X 

S  Tenn 1870     co 

X 

X 

*  Ky 189l|     S 

X 

X           X 

. 

X 

X 

_  Mont 18RS 

CO 

X 

X 

X 

X         x 

!   x 

X 

8  Ida 188£ 

CO 

X 

X 

X 

X 

X 

X 

X 

fe  Colo 1»7I 

cd 

X 

X 

X 

X           X 

X 

X 

X 

•  Utah 189f 

S 

X 

X 

X 

5  Nev 1864'    cd 

X 

X 

X 

X 

S3  Wyo 188' 

CO 

X 

X 

X 

X      j     X 

X 

X 

X 

X 

o  Oreg 185- 

CO 

X 

X 

X 

S  Wash 189( 

X 

X 

X 

X 

X 

S  Cal 1S7< 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X=-a  provision  on  the  subject  indicated  at  the  head  of  the  column, 
next  page. 


See 


432 


MUNICIPAL  LIBERTY. 


pointed  by  the  authorities  thereof.  It  lias  been  held  under 
this  that  police  commissioners  and  similar  boards  are  not  muni- 
cipal officers,  but  state  officers;  and  may  still  be  appointed  by 
the  governor  or  selected  in  any  way  the  legislature  may  direct. 
(15  K  Y.  532;  36  K  Y.  285.)  But  55  K  Y.  50,  holds  that 
police  commissioners  of  a  city  or  town  are  municipal  officers, 
and  protected  by  the  constitution,  so  that  the  state  cannot 
appoint  them,  except  where  it  combines  several  cities  or  coun- 
ties in  a  metropolitan  police  district,  as  was  the  case  in  15 
1ST.  Y.  The  Virginia  constitution  requires  the  local  election 
of  officers  of  cities  and  towns.  In  Utah  also  there  is  a  sweep- 
ing provision  requiring  the  election  of  local  officers.  In 
Michigan  and  Indiana,  as  we  have  seen,  the  courts  take  the 
ground  that  the  local  selection  of  local  officers  is  an  inherent 
right  that  exists  without  any  express  provision.  An  attempt 
has  been  made  in  column  A  to  indicate  the  shades  of  enact- 
ment— co,  meaning  county;  d,  township  or  district;  ct,  county 
and  district  or  county  and  township;  x,  municipal  officers; 
S,  a  sweeping  provision,  and  D  a  sweeping  decision  in  favor  of 
local  selection  of  officers.  My  idea  at  first  was  to  indicate  the 
various  shades  in  every  column,  but  it  proved  impossible  to  do 
this  in  some  columns  with  any  satisfactory  approach  to  accur- 
acy and  exhaustiveness,  and  so  the  uniform  sign  x  is  used  to 
show  simply  that  the  state  has  a  law  of  the  kind  indicated 
.by  the  words  at  the  top  of  the  column,  the  shades  of  legisla- 
tion being  given  in  the  text  accompanying  the  tables. 

2.  Columns  B  to  J  inclusive  relate  to  constitutional 
safeguards  against  special  legislation.  In  many  states  such 
legislation  is  forbidden  for  some  or  all  of  the  specified  pur- 
poses— laying  out  or  vacating  streets,  granting  franchises  to 
railways,  turnpikes,  ferries,  etc.,  creating  corporations  or 
granting  corporate  powers,  granting  to  any  corporation,  asso- 
ciation or  individual  the  right  to  lay  down  a  railroad  track,  or 
any  special  or  exclusive  privilege,  immunity  or  franchise  what- 
ever (111.,  Pa.,  etc.),  creating  municipal  offices  or  prescribing 
their  duties,  creating  or  amending  municipal  charters  or 
regulating  municipal  affairs,  etc.  (See  Pa.,  HI.,  Mo.,  Mont., 
Colo.,  Wy.,  etc.) 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       433 

It  is  a  marked  advance  to  limit  the  legislative  power  of  pass- 
ing local  and  special  acts,  for  the  chance  of  enacting  bad 
general  laws  without  arousing  effective  opposition  is  very 
much  lees  than  in  the  case  of  special  laws  which  affect  fewer 
people.  Yet  great  as  the  advantage  is,  there  are  some  dis- 
advantages. First,  the  legislature,  if  left  free  to  classify 
municipalities,  may  he  able  to  attain  almost  or  quite 
the  same  individual  and  specific  action  under  "general 
legislation"  (or  such  as  affects  all  the  cities  of  the  same 
class)  that  it  formerly  attained  by  means  of  what  is 
called  "special  legislation."  To  prevent  this  the  constitution 
should  specify  the  classes  into  which  municipalities  are  to  be 
divided.  Second.  A  city  or  town  may  desire  special  legisla- 
tion in  its  behalf,  of  a  perfectly  proper  sort,  in  cases  where  it 
does  not  seem  best  to  pass  a  general  law.  To  provide  for  such 
cases,  a  provision  should  be  inserted  allowing  special  legisla- 
tion upon  petition  of  the  municipality  or  municipalities 
affected,  a  favorable  referendum  vote  in  such  municipalities 
being  required  either  on  the  petition  or  on  the  law  that  may  be 
secured  by  it. 

The  constitution  may  require  notice  of  special  legislation  to 
be  sent  to  the  municipality  affected,  and  re-enactment  of  the 
law  by  the  legislature  if  the  city  or  town  objects  to  it — a  sort 
of  mild  municipal  veto  on  local  legislation  (as  in  N".  Y.)  In 
some  constitutions  notice  must  be  given  of  the  intention  to 
introduce  a  special  bill  so  that  those  who  object  may  be  pre- 
pared to  fight  the  measure,  but  no  veto  or  re-enactmen.  is  pro- 
vided for  (N.  J.,  Pa.,  K  Car.,  Fla.,  etc.)  The  notices  thus 
provided  for  are  very  important  as  a  means  of  preventing  the 
practically  secret  passage  of  special  acts,  which  is  one  of  the 
prominent  evils  of  the  existing  system  in  several  of  our  states. 

Sometimes  it  is  provided  that  there  shall  be  no  special  legis- 
lation in  any  case  where  a  general  law  is  applicable.  (W.  Va., 
Minn.,  la.,  Kans.,  S.  Dak.,  S.  Car.,  Ga.,  Ala.,  Miss.,  La.,  Tex., 
Ky.,  Mont,  Colo.,  Nov.,  Wy.)  Where  the  constitution  also 
says,  as  in  Minnesota  and  Missouri,  that  the  question  "whether 
a  general  law  could  have  been  made  applicable  in  any  case  is 
hereby  declared  a  judicial  question,"  the  provision  is  srood; 

28 


434  THE    CITY*    FOR    THE    PEOPLE. 

otherwise,  it  is  of  little  value,  for,  in  the  absence  of  such  ex- 
press declaration,  the  applicability  of  a  general  law  is  held  to 
be  a  matter  for  the  legislature  to  decide  (113  111.  315,  8  Col.,. 
122,  19  Kans.  303,  29  Ind.  409,  etc.). 

In  column  I,  New  Jersey  provides  that  corporations  shall  not  be 
crceated  by  special  act,  but  "corporations"  is  held  not  to  include 
municipal  corporations.  In  several  states  the  pro  vision  against 
creating-  corporations  by  special  act  expressly  excepts  municipal 
corporations.  (Md.,  Mich.,  N.  Car.,  Ala.,  Mont.,  Col.,  Oregon — Wis. 
excepts  cities.) 

3.  The  principle  of  local  consent  is  recognized  in  fifteen 
constitutions.  Massachusetts,  Pennsylvania,  South  Carolina 
and  Wyoming  require  local  consent  as  a  prerequisite  to  the  in- 
corporation of  a  city.  New  York,  West  Virginia,  Illinois, 
Missouri,  Nebraska,  South  Dakota,  South  Carolina,  Georgia, 
Alabama,  Kentucky,  Idaho,  Colorado  and  Wyoming,  require 
local  consent  for  the  construction  of  a  street  railway.  In  some 
states  the  provisions  are  broader.  Kentucky  does  not  permit 
the  construction  of  any  street  railway,  gas,  water,  steam  heat- 
ing, telephone  or  electric  light  system  in  city  or  town  without 
its  assent.  South  Carolina  requires  local  consent  for  street 
railways,  telegraph,  telephone,  electric  light,  water  and  gas. 
Wyoming  requires  such  consent  for  the  first  four  just  named, 
and  South  Dakota  for  the  first  three. 

4.  Constitutional  provisions  transferring  from  the  state  to 
the  municipality,  the  power  to  grant  street  railway,  telephone, 
water,  gas,  electric  light  and  other  local  franchises,  would  be 
very  valuable. 

5.  Also  provisions  establishing  the  right  of  cities  and  towns 
to  own  and  operate  water  works,  gas  works,  electric  light 
plants,  telegraph  and  telephone  systems,  street  railways,  etc., 
best  when  the  clause  is  a  sweeping  one  that  gives  all  munici- 
palities the  right  to  own  and  operate  any  public  work  or  ser- 
vice on  the  people's  vote  to  that  effect,  proper  provision  being 
made  respecting  the  purchase  of  existing  plants.  By  South 
Carolina's  constitution  (1895)  cities  and  towns  are  empowered 
to  build  or  buy  water  works  or  light  plants  and  supply  the 
inhabitants  on  a  majority  vote  of  the  people.  (See  comment 
on  Table  II.) 


HOME    IUILE    FOR    OUR    CITIES.  43t) 

G.  The  last  column  is  probably  the  most  important  of  all 
lit  its  bearing  on  future  progress.  The  subject  has  already 
been  dealt  with  in  the  text,  but  a  very  condensed  summary 
may  be  useful  at  this  point.     (See  further  Appendix  I.) 

Five  states  have  given  municipalities  the  right  to  make  their 
own  charters.  Mo.,  1875;  Cal.,  1879;  Wash.,  1890;  Minn.,  1896,  by 
Constitutional  provision,  and  La.  by  statute  in  1896.  In  Mo.  the 
provision  applies  to  cities  over  100,000  population,  in  Washington 
to  cities  over  20,00C;  in  California  to  cities  over  3,500;  and  in. 
Minnesota  to  all  municipalities.  The  Louisiana  statute  adopts  a. 
rule  precisely  opposite  to  the  Missouri  principle,  and  permits  all 
municipalities  except  New  Orleans  to  make  their  own  charters. 

In  Missouri  the  city  elects  thirteen  freeholders  who  prepare  a. 
charter  which  is  submitted  to  the  people,  and  if  ratified  by  four- 
fifths  of  the  qualified  electors  voting,  it  becomes  the  charter  of  the 
city.  St.  Louis  was  given  special  authority  to  adopt  a  charter  by  a 
majority  vote.  Amendments  may  be  submitted  by  the  legislative 
authorities  of  the  city,  and  adopted  by  a  two-thirds  referendum 
vote.     (Mo.  Const.,    1S75,  Art.  IX,  §§   16   to   25.) 

In  Minnesota,  the  charter  is  prepared  by  a  board  of  fifteen  free- 
holders appointed  by  the  district  judge  and  must  be  adopted  by  a 
four-sevenths  vote  of  the  people;  amendments  by  a  three-fifths  vote. 
A  constitutional  amendment  providing  that  charter  amendments 
shall  be  submitted  to  the  people  on  a  5  per  cent,  petition  of  the 
voters,  was  adopted  at  the  polls  Nov.,  1898,  by  a  vote  of  2  to  1,  and 
in  1899  the  Legislature  passed  an  act  (chap.  351)  pursuant  to  the 
home-rule  amendments  and  denning  the  method  of  procedure  under 
them.  By  this  statute  freeholders  are  to  be  appointed  whenever 
10  per  cent  of  the  voters  of  the  city  or  town  petition  to  that  effect, 
(Minn.  Const.  Art.  iv,  amendments  1896,  1898,  statutes  255,  1897.  and 
351,  1899). 

In  Washington,  the  legislative  authority  of  the  city  "may  order 
the  election  of  fifteen  freeholders  to  prepare  a  charter  to  be  adopted 
by  a  majority  vote  of  the  people.  Amendments  proposed  by  coun- 
cils and  adopted  by  majority  referendum  vote.  By  statute  the  city 
council  must  order  an  election  of  freeholders  upon  a  petition  of 
one-fourth  of  the  voters  of  the  city.  (Wash.  (Oust.,  1890,  Art.  XI. 
\  10,  and  Wash.  Code,  \  1142.) 

In  California,  fifteen  freeholders  are  elected  to  make  the  charter 
which  must  be  adopted  by  a  majority  vote  at  the  polls,  and  ap- 
proved by  the  legislature.  Amendments,  at  intervals  of  not  less 
than  two  years,  submitted  by  the  legislative  authority  of  the  city 
and  ratified  by  a  vote  at  the  polls,  and  approved  \>y  the  legis- 
lature. Const,  amendment,  1896,  shuts  out  legislative  control 
over  home-made  charters  so  far  as  "municipal  affairs"  are  con- 
cerned. (Cal.  Const,  Art.  XI,  §§  6  to  8y2  as  amended  down  to  1899, 
will  be  found  pp.  LII  to  LIV  Cal.  Laws,  1899.  See  also  Extra  Session. 
1900,  Resolution  of  Feb.  9,  proposing  that  charter  amendments  may 
be  adopted  by  a  majority  instead  of  three-fifths.) 

In  Louisiana,  on  petition  of  a  majority  of  the  property  owners 
of  any  city  or  town  (except  New  Orleans)  praying  a  referendum 
on  a  new  charter,  a  copy  of  which  must  accompany  the  petition, 
the  mayor  and  council  shall  submit  the  proposed  charter  to  a 
referendum  vote,  and  if  adopted,  it  is  to  be  the  organic  law  of  the 
municipality.     (Laws  of  La.,  1896,  No.  135,  p.  190.) 


436 


THE    BONDAGE    uF    CITIES 


x    Statute  Provision 

c=Coostitutional  Provision 
C=broad 
Xc=both  Stat,  and  Const.  Pre 


TAB 

MUNICIPAL 

ACCORDED  BY  LEGISLATIVE  POLICY 


Conferring  local  power  to  establish,  construct,  build,  buy,  organize,  own. 

t 
2 

1 
£1 

— 

00 

o 

* 

u 

4) 

> 

p" 
tr. 

o 

M 

'5 
K    . 

00 

3d 

T3 

a    • 
-  a 

of  p, 
J-.  a> 

fg 

I 

i 

> 
-_ 

el 

IS 

I 

Franchises 

States. 

if  ■ 

ll 

r 

ill 

X 
X 
X 
X 
X 
X 

X 
X 
X 
X 

1 

X 

X 
X 

p 

X 
X 

p 

X 
X 

X 

X 
X 

X 
X 

X 

X 

-   N    H 

w  Vi 

X           X 
X          X 

~  R.  I     

X 

^  N   Y 

X 
X 
X 
CO 
X 
X 

X 
X 
X 

X 

X 
X 

X 
X 
X 

X 

X 
X 

X 

X 

X 
X 

X 

xc  ;   x 

X      '     X 
X 

§  N.J 

W  Penna 

■rs  Del 

2  Md 

"*  W.Va 

Xc        x 

ji,  Ohio.. 

X 
X 
X 
X 
X 
X 

X 
X 
X 
X 
X 
X 

X 
X 
X 
X 
X 
X 

X 
X 

p 

X 
X 
X 

X 

X           X 

p 

X 
X 

|     X     I     X 

X 

X 
X 

X 
X 
X 

X 
X 

X 
X 

x 

X 
X 

X 

X           X 
X          X 

xt.      X 

X 

X           X 

X           X 

r  Ind 

£  in 

.  Mich 

3  Wise 

^  Minn 

Mo 

X 
X 
X 
X 
X 
X 

X 
X 
X 
X 
X 
X 

X 
X 
X 
X 

X 

X 
X 
X 
X 

p 

X 
X 
X 
X 

!     P 

X 

X 

X 

X 

x 

X 

X 
X 
X 

x 

x 

X 
X           X 
X          X 
c          X 

xc 

X          X 

2  Neb 

S  S.  Dak 

N.  Dak 

3  Va 

X 
X 
X 
X 
X 

CO 

X 

X 
X 
X 

X 
X 
X 

c 

X 
X 

c 

X 

X 

X 

X 

x 

X 

X 
X 

9  N.Car 

a  S.  Car 

•B  Ga 

c        x 

X           X 
c         X 

1  Fla 

tc  Ala 

j=.  Miss 

s  La 

X 

X 
X 
X 
X 
X 

X 

X 
X 
X 
X 

X 

X 
X 
X 
X 

X 

p 

X 
X 

i    x 
p 

X 

x 

X 

X 

X 
X 

X 

X 
X 
X 

x 

£  Tefas 

.  Ark 

X          X 
X 
X           X 
C           Xc 

2  Tenn 

3  Ky 

^  Mont 

8  Ida 

£  Colo 

X 

X 
X 
X 
CO 

X 

X 
X 
X 
X 
CO 
X 

X 
X 
X 
X 

X 

X 

p 

X 

X 

!    P 

X 

X          X 

X 

CO 

X 

X 

X 
X 
X 
X 

X 

X          X 
XC        X 
XC        X 
X          X 
X 
XC        v 

•  Utah 

—  Nev 

**  Wyo 

«  Ore 

X 
X 
X 

X 
X 

X 
X 
X 

X 
X 
X 

X           X 

X 
X 

X 

X 

X 
X 

^  Wash 

X         x 

i*  Cal. : 

X 

! 

I 

Under  these  provisions  St.  Louis,  Kansas  City,  San  Francisco, 
Sacramento,  Oakland,  Los  Angeles,  Stockton,  San  Diego,  Seattle, 
Tacoina,  Duluth,  St.  Paul,  etc.,  have  established  charters  of  their 
own  making*.  The  St.  Louis  charter  gives  the  city  power  to  grant 
franchises,  construct  street  railways,  buy  and  hold  property  to  be 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE. 


437 


LE  II. 

FREEDOM 

EXPRESSED  IN  GENERAL  LAWS. 


co     County 
P-  power  to  provide  i'or  lighting 
I  -a  law   with    very   important 
exceptions 


States. 


operate,  manage,  control,  deal  with,  grant,  &c. • 


■ 

.22 

M 

si 

S 

«s 

a, 

s 

x> 

Ch 

M 

8 

" 

w 

4) 

° 

•  CO 


Provid'g  for 


31! 


Debt  Limit 
for 

Municipalities 

fixed  by 
Constitution 

or  Statute. 


Maine. 
N.  H... 

Vt 

Mass.. . 
R.  I  ... 
Conn. . 


5$  (const.) 


■1&  2'.,,  (stat) 
'.¥,  (stat.) 


N.  Y.... 

N.  J 

Penna. 

Del 

Md 

W.Va. 


Ohio... 
hid.... 

Ill 

Mich. 
Wise. 
Minn 


Mo 

Iowa 

Kans. ... 
Neb 

S.  Dak... 
N.  Dak.. 


Va 

N.  Car. 
S.  Car. 

Ga 

Fla 

Ala 


X 

I      X 

X 
X 
X 


10$  (const.) 


5$  (const.) 


2^  (const ) 
Sjf  (const.) 

5#  (const.) 
ltyc  (stat.) 


5$  (const.) 

10$  2d  cl.  (stat.) 
10$  4-  (stat.) 
5$  4-  (const.) 
H  +  (const.) 


tat.) 
bond  lim. 

(const.) 


Miss... 

La 

Texas . 
Ark.... 
Tenn. . 

Ky 


Mont. 
Ida.... 
Colo. .. 
Utah.. 
Nev... 
Wyo.. 


X  X 
X 

X  X 

X  \     X 


ty  4-  (stat) 
10^  (bond  slat.) 
ty  4-  (const.) 


2%  4-  (const 


Ore 

Wash 
Cal. ... 


82,600  (stat 

o#  (stat.) 


used  for  the  erection  of  water  works  or  gas  works,  to  supply  the 
city  with  water  and  light,  for  the  establishment  of  hospitals  or  poor 
houses,  etc.,  or  for  any  other  purpose;  secures  the  local  election  or 
appointment  of  the  city  officers  required  by  the  cha/ter;  and  pro- 
vides that  amendments  to  the  charter  shall  be  submitted  to  the 


4:38  MUNICIPAL  LIBERTY. 

people  separately.  The  people  have  no  initiative,  however,  as  to 
amendments,  and  neither  initiative  nor  referendum,  as  to  ordi- 
nances. 

The  banner  charter  of  all  is  the  one  adopted  by  the  voters  of 
San  Francisco  in  May,  1898.  It  contains  strong  civil  service  rules, 
declares  for  public  ownership  and  operation  of  street  railways, 
water,  gas,  electric  light  plants,  telephone  systems,  etc.,  announces 
the  policy  of  gradual  absorption  of  all  such  monopolies,  and  pro- 
vides for  a  popular  initiative  and  referendum  upon  these  questions, 
and  upon  ordinances  of  all  sorts  and  upon  amendments  to  the 
charter,  upon  petition  signed  by  a  number  of  voters  equal  to  fifteen 
per  cent,  of  the  votes  cast  at  the  last  preceding  election. 

The  charter  is  not  equally  good  in  all  its  parts,  but  these 
admirable  provisions  make  it  possible  for  the  people  to  mould  the 
charter  easily  to  any  form  they  desire. 

The  people  of  San  Francisco  appear  to  have  their  own  destiny 
more  conrpletel}'  in  their  own  hands  than  the  people  of  any  other 
large  city  in  the  country.  Their  control  is  subject  only  to  general 
laws,  and  the  approval  of  the  legislature  to  charter  amendments, 
which,  it  is  said,  is  not  likely  to  be  withheld  in  the  case  of  a  un- 
reasonable amendment. 

In  Table  II,  as  in  the  former  one,  two  crosses  in  the  same 
column  may  represent  widely  different  laws;  both  will  be 
general  laws  relating  to  the  subject  at  the  head  of  the  column, 
but  one  law  may  be  much  broader  than  the  other.  The  mass 
of  statute  law  behind  this  table  is  too  great  for  anything  like 
full  treatment  here.  We  can  only  comment  briefly  on  a  few 
of  the  more  important  columns,  and  note  a  few  general  acts 
that  fall  outside  the  limits  of  the  table. 

One  of  the  interesting  columns  is  that  which  relates  to  the 
limit  of  municipal  indebtedness  with  its  frequent  exceptions 
in  favor  of  water  works,  and  its  expandibility  by  special  vote, 
as  in  North  Dakota,  where  by  the  constitution  the  municipal 
debt  is  not  to  exceed  5  per  cent,  on  the  taxable  property,  ex- 
cept that  a  city  may  expand  the  limit,  3  per  cent.  (i.  e.,  make 
it  8  per  cent.)  by  a  two-thirds  vote,  and  neither  limit  is  to  pre- 
vent the  raising  of  funds  to  establish  water  works.  There  are 
also  statute  provisions  requiring  a  referendum. on  the  issue  of 
bonds  for  buildings,  fire  apparatus,  water  works,  sewers,  street 
improvements,  etc. 

Another  attractive  part  of  the  Table  is  that  relating  to  local 
selection  of  local  officers,  especially  the  police  column,  and  the 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       439 

results  of  experimenting  with  state  boards  and  metropolitan 
police  laws  in  reference  (o  New  York  and  Boston  and  other 
large  cities  in  various  states.  The  matter  of  jails,  poorhouses, 
cemeteries  and  hospitals  is  very  important,  and  the  question 
of  schools,  libraries,  parks  and  baths,  which  may  do  much  to 
relieve  the  pressure  on  the  aforesaid,  is  also  of  vital  moment. 
Education  is  undeniably  a  state  interest.  But  it  is  also  a  muni- 
cipal interest.  The  state  properly  determines  the  broad  lines 
of  policy.  The  municipality  properly  carries  on  the  schools 
upon  those  lines,  with  wide  discretion,  local  ownership  and 
large  control.  The  state  may  fix  a  minimum,  co-ordinate  all 
parts  of  the  system  and  stimulate  progressive  movement,  but 
the  city  or  town  should  be  free  to  go  as  far  beyond  the  mini- 
mum as  it  can,  and  have  large  liberty  to  express  its  individu- 
ality. 

The  difference  of  quality  in  the  measures  behind  the  crosses 
in  these  columns  is  sometimes  very  great.  For  example,  in 
New  York  free  public  baths  must  be  established  in  1st  and 
2d  class  cities.  In  Massachusetts,  towns  may  establish  public 
baths.  So  in  most  cases  the  provision  regarding  the  establish- 
ment of  libraries  is  permissive,  but  in  Michigan  a  free  library 
must  be  established  in  every  township,  and  the  clause  is  in  the 
constitution.  The  difference  in  quantity  is  also  considerable 
as  well  as  in  quality  and  force.  Sometimes  the  provision  only 
applies  to  one  or  two  classes  of  municipalities,  as  just  noted  in 
the  New  York  bath  law;  probably  the  smaller  cities  of  New 
York  state  are  not  so  much  in  need  of  compulsory  washing  as 
dusty  New  York  and  smoky  Buffalo.  As  a  rule,  however,  the 
whole  group  we  are  studying  (including  all  cities,  towns  and 
villages)  is  behind  each  cross. 

The  most  interesting  columns  of  all  are  those  relating  to  the 
streets  and  the  local  services  which  usually  involve  street  fran 
chises;  as  gas,  electric  light,  street  railways,  telegraph  and 
telephone  systems,  local  consent  and  power  to  grant  franchises. 
It  would  be  profitable  to  take  each  state  in  order,  bring  to  a 
focus  the  substance  of  all  its  provisions  on  these  subjects  and 
then  note  unities  and  contrasts  and  draw  conclusions.  Space, 
however,  will  not  permit  us  to  write  out  the  record  fully  here.. 


440 


THE    CITY    FOR    THE    PEOrLE. 


We  will  say  a  word  about  street  railways  and  telephones,  and 
then  take  municipal  lighting  and  local  control  of  franchises 
for  a  somewhat  fuller  treatment,  choosing  these  subjects  for 
detailed  discussion  because  they  represent  the  area  of  greatest 
movement — most  rapid  advance  toward  municipal  liberty  in 
the  last  few  years. 

In  five  states  there  are  general  laws  empowering  municipali- 
ties to  own  and  operate  street  railways.  In  Minnesota,  any 
city  or  village  may,  on  a  two-third  referendum  vote,  buy  and 
operate  street  railways.  In  California,  the  power  to  build  or 
buy,  own  and  operate  street  railways  is  given  to  6th  class  cities 
(those  of  less  than  3,000  inhabitants).  The  same  full  power 
is  conferred  in  Indiana  upon  cities  of  35,000  people  or  more, 
belongs  to  every  city  council  in  Utah,  and  to  every  incorpor- 
ated city  and  town  in  "Washington.  (See  Laws  of  1897,  Chap. 
112,  and  Washington  "Codes  &  Statutes,"  1897,  §1076.) 

In  11  states  there  are  general  laws  authorizing  municipal 
telegraphs  or  telephones  or  both,  and  in  6  of  the  states  the 
power  is  commercial.  Maine,  Massachusetts  and  Vermont 
give  their  totems  a  general  right  to  put  up  telegraph  and  tele- 
phone wires  for  their  own  use.  North  Dakota  and  Utah  allow 
cities  to  erect  municipal  fire  signals.  (Cities  would  have  this 
right  anyway  under  the  general  police  power,  without  any 
specific  law  either  general  or  special.)1    In  Kentucky,  3d  class 

(1)  It  Is  well  to  remember,  in  dealing  with  Table  II,  that  the  absence  of 

feneral  legislation  does  not  always  indicate  the  absence  of  municipal  power, 
'or  example,  some  states  have  no  general  laws  conferring  on  cities  or  towns 
the  right  to  establish  fire  departments,  yet  it  is  practically  a  universal  fact 
that  cities  and  towns  have  that  right  under  special  provisions  of  their 
charters  or  as  an  implied  authority  under  the  broad  power  to  provide  for  the 
safety  and  welfare  of  the  community.  (Dillon,  §143.)  Perhaps  authority  to 
establish  a  telegraph  or  telephone  system  for  the  use  of  city  police  and  other 
officials  might  also  be  implied  under  the  general  police  power.  Markets  may 
be  established  by  municipalifies  under  implied  authority  based  on  ancient 
usage.  (23  Pick.  71,  C.  J.  Shaw.)  Power  to  establish  cemeteries  and  hos- 
pitals will  doubtless  be  implied  from  the  general  welfare  or  police  clause 
usual  in  municipal  charters,  and  I  think  the  power  to  establish  public  parks 
and  bath  houses,  which  may  help  to  make  hospitals  unnecessary,  ought  also 
to  be  implied  from  the  said  clause.  The  lighting  of  streets,  being  a  measure 
strongly  favoring  safety  and  morality,  should  fall  in  the  same  class. 

A  municipality  having  power  to  pass  ordinances  respecting  the  police  of 
the  place,  and  to  preserve  health,  is  authorized  as  a  sanitary  and  police 
regulation,  to  procure  a  supply  of  water  and  may  bore  an  artesian  well  or 
take  any  other  requisite  steps.  (Dillon,  §146,  8  Mich.  458;  66  Ind.  396;  31 
Ala.  542.)  But  while  the  right  to  establish  water  works  is  within  the  ordi- 
nary broad  charter  powers  and  needs  no  express  grant,  yet  it  Is  subject  to 
arbitrary  revocation  by  the  legislature  at  any  time.  For  example,  the  city 
of  Memphis  spent  $30,000  getting  plans,  etc..  for  water  works,  then  the 
legislature  granted  a  private  company  the  exclusive  right  to  build  water 
works  in  Memphis.  This  was  held  to  revoke  the  city's  right,  altho  it  had 
begun  to  build.  (Memphis  v.  Memphis  Water  Co.,  5  Heisk.  495.)  For  gas, 
electric  light,  street  railway,  telephone  and  other  plants,  for  serving  the 
Inhabitants  generally,  there  is  no  doubt  that  authority   will  not  be  implied, 


HOME   EULE   FOR   OUR   CITIES.  441 

cities  (8,000  to  20,000)  may  supply  inhabitants  with  tele- 
phone service.  In  Washington,  3d  class  cities  (1,500  to  10,- 
000)  and  towns  (all  municipalities  of  less  than  1,500  inhabi- 
tants) have  authority  "To  permit  under  such  restrictions  as 
they  may  deem  proper,  the  laying  of  railroad  tracks  and  the 
running  of  cars  drawn  by  horses,  steam,  electricity  or  other 
power  thereon,  or  the  laying  of  gas  and  water  pipes  in  the 
public  streets,  and  to  construct  and  maintain  and  to  permit 
the  construction  and  maintenance  of  TELEGRAPH,  TELE- 
PHONE (and  electric  light)  lines  therein."  (Track  and  Pipe 
clause,  Codes  &  Statutes,  1897,  §938,  13.)  Note  that  the 
general  charter  laws  for  1st  class  cities  (those  over  20,000)  and 
2d  class  cities  (those  between  10,000  and  20,000)  do  not  con- 
tain the  above  clause.  2d  class  cities,  however,  in  common 
with  3d  class  cities  and  towns  "may  purchase,  leceive,  have, 
take,  hold,  lease,  use  and  enjoy  property  of  every  name  and 
description,  and  control  and  dispose  of  the  same  for  the  com- 
mon benefit."  One  not  familiar  with  legal  ways  of  doing 
things  might  think  that  this  would  cover  the  telephone  and 
everything  else,  and  it  might  be  so  held  in  court.  If  such  a 
grant  of  power  stood  alone  it  would  be  very  broadly  construed, 
but  as  it  is  accompanied  by  a  long  enumeration  of  powers  to 
establish  water  works,  hospitals,  docks,  etc.,  the  courts  may 
3onstrue  the  broad  power  in  reference  to  the  enumeration  and 
.iold  that  the  broad  clause  gives  authority  to  acquire  and  hold 
property  of  all  sorts  when  needful  for  the  specific  purposes 
named  in  the  express  enumeration  of  powers. 

In  California,  3d  class  cities  (15,000  to  30,000)  have  the 
same  Track  &  Pipe  clause  as  in  Washington  except  that  the 
italicized  words  and  those  in  parenthesis  are  omitted — 4th, 
5th  and  6th  class  cities  (which  three  classes  include  all  munici- 
palities under  15,000  inhabitants)  have  the  Track  &  Pipe 
clause,  italicized  words,  and  all  except  the  parenthesis.  1st 
class  cities,  or  those  over  100,000,  have  no  "Track  &  Pipe" 
clause  except  this:  "To  permit  the  laying   down    of  railroad 

that  special  requests  are  apt  to  meet  with  strenuous  opposition  and  frequent 
defeat,  and  that  no  substantial  liberty  in  these  directions  is  possessed  b.r 
municipalities  in  the  absence  of  general  laws  or  constitutional  provisions. 
The  same  thing  Is  true  in  respect  to  the  columns  that  deal  with  franchises, 
local  consent  and  power  to  grant. 


442  THE    BONDAGE    OF    CITIES 

tracks  and  running  of  cars  thereon  along  any  street,  for  the 
sole  purpose  of  excavating  and  filling  in  a  street,  and  for 
such  limited  time  as  may  be  necessary  for  the  purpose  afore- 
said and  no  longer."  The  only  power  such  cities  have  under 
general  law  to  construct  and  operate  lines  for  the  transfer  of 
intelligence  by  wire,  is  to  maintain  fire  alarm  and  police  tele- 
graphs in  the  city  or  city  and  county. 

"We  find,  therefore,  that  in  California,  municipalities  under 
15,000  have  unrestricted  power  to  build  and  operate  telegraph 
and  telephone  systems,  but  for  larger  places  there  is  no  general 
provision  authorizing  anything  more  than  a  fire  alarm  and 
police  telegraph.  The  law  so  exactly  mirrors  the  interests  of 
the  corporations  that  one  cannot  help  having  a  suspicion  that 
municipalization  of  the  telephone  is  not  permitted  in  the  large 
cities  because  the  private  companies  want  to  keep  those  cities 
for  themselves,  while  municipalization  is  permitted  in  small 
places  because  there  is  little  or  no  inducement  for  the  big 
corporations  to  go  there — they  can  use  their  money  "to  better 
advantage"  in  the  larger  cities. 

In  Minnesota,  any  city  or  village,  on  a  2/3  referendum 
vote,  may  buy  and  own  and  operate  a  telephone  plant.  And 
in  Indiana,  a  general  law  provides  that  any  city  of  more  than 
35,000  inhabitants  may  build  or  buy  and  operate  telegraph 
or  telephone  lines  to  serve  the  city  and  its  inhabitants,  or  may 
purchase  and  hold  a  majority  of  the  stock  of  any  corporation 
organized  for  such  purpose.     (For  Wise,  see  Appendix  II,  U.) 

MUNICIPAL  LIGHTING  LAWS. 

We  come  now  to  municipal  ownership  of  lighting-plants 
and  will  then  consider  local  control  of  franchises.  In  dealing 
with  gas  and  electric  light,  we  shall  try  to  give  an  idea  of  the 
provisions  that  go  with  the  light  laws;  so  that  they  may  be 
seen  in  true  relations  to  their  surroundings.  We  shall  find 
that  this  method  will  lead  us  by  almost  insensible  gradations 
to  the  study  of  local  consent  and  powers  of  grant. 

In  Maine,  Vermont,  Rhode  Island,  Delaware,  Maryland, 
South  Dakota,  Virginia,  North  Carolina,  Alabama,  Louisi- 
ana, Arkansas,  Nevada  and  Wyoming,  there  appears  to  be 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  443 

no  general  legislation  permitting  cities  and  towns  to  own  and 
operate  gas  or  electric  light  plants.1 

New  Hampshire,  Illinois,  North  Dakota  and  Texas  have 
general  laws  allowing  municipalities  to  provide  light  for 
streets.  Under  this  authority  a  municipality  may  build  works 
of  its  own  or  contract  with  others  to  light  the  streets.  (Levis 
v.  iSTewton,  75  Fed.  884.) 

In  Idaho,  sl  city  or  village  may  provide  light  for  public  pur- 
poses and,  by  the  laws  of  1897,  may  grant  exclusive  gas  fran- 
chises to  light  the  streets. 

In  New  York,  gas  may  be  furnished  for  public  use  by  any 
village  owning  water  works. 

In  Ohio  the  law  permits  any  city  or  town  to  erect  or  pur- 
chase gas-works  whenever  the  council  deems  it  expedient.2 
And  a  city  may  procure  its  own  gas-works,  and  supply  the  city 
and  its  citizens,  altho  a  gas  company  incorporated  before  this 
law  was  enacted  is  in  operation  in  the  city  and  is  not  in  any 
default.  The  construction  of  gas-works  by  the  city  under  such 
a  law  does  not  impair  the  obligation  of  contract.  The  gas 
companies  took  their  charters  subject  to  such  contingencies, 
which  might  arise  at  any  time  by  the  exercise  of  legislative 
power  to  authorize  municipal  works.3     (See  Appendix  H,  U.) 

In  Oeorgia,  a  town  or  village  may  erect  gas  .  works.  In 
Oregon,  any  city  or  town  may  build  gas  works.  In  Montana, 
all  municipalities  may  build  gas  or  electric  light  works,  and  in 
Mississippi,  all  municipalities  may  buy  gas  or  electric  light 
works. 

Connecticut  gives  all  municipalities  the  right  to  build  or 
buy  gas  or  electric  light  works  and  sell  to  the  citizens.  No. 
115  of  Michigan's  laws  for  1891  gave  any  city  or  incorporated 
village  the  right  to  build  or  buy,  maintain  and  operate,  works 
to  supply  the  city  or  village  and    its   inhabitants   with    gas, 

0)  I  say  it  "appears  to  be"  because  it  is  not  easy  to  be  absolutely  certain 
about  a  negative  relating  to  large  masses  of  miserably  Indexed  statutes. 
Great  care  has  been  taken  and  every  volume  of  statutes  has  been  examined 
under  30  odd  topics  or  index  heads.  Still  some  pertinent  facts  may  have 
escaped  the  notice  of  the  writer  or  his  assistants,  and  if  any  reader  discovers 
an  error  of  omission  or  commission,  it  will  be  appreciated  as  a  favor  if  he 
will  call  attention  to  it  by  a  line  to  the  writer  at  Boston  University  Law 
School. 

(2)  Ohio  Statutes,  Revis.  of  1897,  §§2486-7;  State  v.  City  of  Hamilton.  47 
Ohio  St.,  52;  Hamilton  Gas  Light  Co.  v.  Hamilton  City,  146  U.  S.,  258,  265-6 
<1892t. 

P>  Hamilton  Gas  Light  Co.  v.  Hamilton  City,  146  U.  S.,  258,  268  (1892- . 


444  MUNICIPAL  LIBERTY. 

electric  or  other  light.  On  petition  of  100  voters  the  common 
council  or  board  of  trustees  must  submit  to  a  referendum  at 
the  polls  the  question  whether  the  city  or  village  shall  avail 
itself  of  the  provisions  of  the  law.  On  such  referendum  the 
law  required  a  2/3  favorable  vote.  This  law  was  superseded 
by  iSTo.  186  of  the  same  year,  1891,  which  provided  that  any 
city  or  incorporated  village  may  build  or  buy,  maintain  and 
operate  works  to  supply  the  city  or  village  and  its  inhabitants 
with  gas,  electric  or  other  light,  or  contract  for  furnishing  the 
same.  Then  follow  initiative  and  referendum  provisions  like 
those  above  except  that  a  majority  vote  is  sufficient,  and  then 
we  find  a  proviso  that  the  clause  relating  to  purchase,  con- 
struction, maintenance  and  operation  shall  not  apply  to 
cities  having  more  than  25,000  inhabitants.  Law  No.  139 
of- 1893,  provides  that  any  city  or  incorporated  village  of  not 
more  than  8,000  population,  which  already  owns  and  operates 
electric  light  works  for  its  streets,  may  supply  the  inhabitants 
also.  The  private  companies  evidently  wish  to  keep  com- 
mercial lighting  in  the  big  cities  for  themselves  as  long  as 
possible. 

In  Tennessee,  all  cities  of  more  than  36,000  population  may 
build  or  buy  gas  and  electric  light  works  to  supply  streets  and 
public  buildings  and  may  supply  gas  to  the  people. 

In  West  Virginia,  the  council  of  a  city,  town  or  village  may 
erect  or  authorize  or  prohibit  the  erection  of  gas,  electric  light 
or  water  works. 

In  Iowa,  a  city  or  town  may  purchase,  establish,  erect, 
maintain  and  operate,  within  or  without  the  corporate  limits, 
water  works,  gas  works,  electric  light  and  power  plants,  and 
may  grant  to  individuals  or  corporations  authority  to  erect 
and  maintain  such  works.  The  term  is  not  to  exceed  25  years. 
!No  exclusive  franchise  is  to  be  granted,  and  no  such  plants  can 
be  authorized,  established,  erected,  purchased,  leased  or  sold, 
or  franchise  extended  or  renewed  unless  the  proposition  is 
favored  by  a  majority  of  the  electors  voting  on  it  at  a  general 
or  special  election.  Under  these  provisions,  it  is  held  that  a 
municipality  may  supply  its  inhabitants  with  light  or  water 
by  a  plant  of  its  own  altho  a  franchise  for  the  same  purpose 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       445 

may  previously  have  been  granted  by  the  municipality  to  a 
private  company.  (Thomson  Houston  Elec.  Co.  v.  Newton, 
42  Fed.  Hep.  723 — bill  to  enjoin  the  city  from  erecting  an 
electric  plant,  the  company  having  spent  $20,000  in  building 
a  plant  under  its  franchise  previously  granted  it  by  the  city, 
and  being  able  to  furnish  all  the  electricity  needed.  See 
Iowa  Code,  1897.)  This  is  according  to  the  principles  of  com- 
petitive business  acted  on  by  the  corporations  themselves — 
if  you're  not  sharp  enough  to  make  a  cast  iron  contract  thai 
will  protect  you  all  round,  you  must  suffer  the  consequences — 
but  it  is  not  just  for  a  city  to  disregard  what  is  fair  to  others 
any  more  than  for  a  private  company  to  do  so. 

Colorado  gives  all  municipalities  the  right  to  build  or  buy 
water  or  light  works  or  grant  light  or  water  franchises.  But 
no  water  or  light  works  shall  be  constructed  or  authorized  .un- 
til sanctioned  by  vote  of  the  people.  Where  municipalities 
have  the  power  to  grant  franchises  together  with  a  general 
power  to  build  or  buy  without  limiting  words,  full  commercial 
power  or  authority  to  sell  to  private  consumers  as  well  as  to 
light  streets  and  public  places,  would  seem  to  be  implied. 

Utah9 8  statutes  in  a  single  clause  give  city  councils  power 
to  construct  and  maintain  water  works,  gas  works,  electric 
light  works,  street  railways,  or  bath  houses,  or. to  authorize 
the  construction  and  maintenance  of  the  same  by  others,  or 
to  purchase  any  or  all  of  said  works  from  any  person  or  cor- 
poration. 

In  New  Jersey,  all  cities  may  buy  electric  or  gas  or  other 
light,  or  water  works,  and  the  franchise,  and  supply  the  city 
and  its  inhabitants. 

In  Wisconsin,  any  city  or  village  may  buy  water  works  or 
light  plants;  municipalities  may  build  lighting  plants  for 
street,  service,  and  may  buy  commercial  plants,  or,  if  there  are 
none  or  none  willing  to  sell,  the  city  may  erect  such  plants. 

In  Pennsylvania,  boroughs  may  light  the  streets,  and  3d 
class  cities  (those  under  100,000  population)  have  the  exclu- 
sive right  to  supply  the  city  with  gas  or  other  light,  or  with 
water,  and  to  erect  works  or  authorize  others  to  supply  gas, 
light  ot  water.     The  councils  of  any  3d  class  city,  if  author- 


446  the  city  fob  the  people. 

ized  by  a  referendum  vote  at  the  polls,  may  buy  (for  such 
price  as  may  be  agreed  on  between  the  councils  and  the  com- 
pany's stockholders)  all  property  of  a  water,  gas  or  electric 
light  company,  and  exercise  all  its  rights.  It  is  further  pro- 
vided that  at  any  time  after  20  years  from  the  introduction  of 
water  or  gas  into  any  place  by  a  private  company,  the  town, 
borough,  city  or  district  in  which  the  said  company  is  located 
may  become  owners  of  the  property  by  paying  the  net  cost  of 
erecting  and  maintaining  the  same,  with  interest  thereon  at 
10  per  cent,  per  annum,  deducting  from  said  interest  all  divi- 
dends theretofore  paid.  No  company  is  to  go  in  where  the 
municipality  has  built  works,  except  by  consent  of  the  muni- 
cipality. 

In  1891,  Massachusetts  passed  an  act  permitting  cities  and 
towns  to  manufacture  and  distribute  gas  and  electricity,  build 
or  buy,  maintain  and  operate,  gas  or  electric  light  works,  and 
supply  light  to  the  city  or  town  and  its  inhabitants.  An 
amendment  in  1894  permitted  municipalities  to  furnish  gas  or 
electricity  for  heat  and  power  except  for  operating  electric 
cars.  A  city  must  have  a  2/3  vote  in  each  council  and  ap- 
proval of  the  mayor  in  each  of  two  consecutive  years,  and  rati- 
fication by  the  majority  of  the  electors  at  an  annual  municipal 
election.  A  town  must  have  a  2/3  vote  in  each  of  2  legal 
town  meetings,  2  to  13  months  apart.  The  municipality  must 
buy  suitable  existing  works  if  the  owners  file  a  schedule  of 
property  and  terms  of  sale  with  the  clerk  of  the  city  or  town 
within  30  days  after  the  final  vote  to  establish  municipal 
works.  The  price  of  the  property  "shall  be  its  lair  market 
value  for  the  purposes  of  its  use  (no  portion  of  such  plant  to 
be  estimated  however,  at  less  than  its  fair  market  value  for 
any  other  purpose)  including  as  an  element  of  value  the  earn- 
ing capacity  of  such  plant  based  upon  the  actual  earnings 
being  derived  from  such  use  at  the  time  of  the  final  vote. 
Such  value  shall  be  estimated  without  enhancement  on  ac- 
count of  future  earning  capacity  or  good  will,  or  of  exclusive 
privileges  derived  from  rights  in  the  public  streets."  Any 
locations  or  similar  rights  acquired  from  private  persons  must 
be  paid  for,  and  damages  suffered  by  the  severancj  of  any  por- 


HOME   RULE    FOR   OUR   CITIES.  447 

tion  of  the  property  lying  outside  the  municipal  limits  are 
allowed,  except  where  the  main  plant  lies  outside.  Within  60 
days  after  the  filing  of  the  schedule,  either  party  may  petition 
the  Supreme  Court  to  appoint  special  commissioners  to  esti- 
mate the  price,  and  appeal  lies  from  these  commissioners  to  the 
Supreme  Court. 

The  Florida  acts  of  1897  contain  a  statute  modelled  thru- 
out  on  the  Massachusetts  law.  It  does  not,  however,  require; 
double  adoption — a  2/3  vote  of  council,  approval  of  mayor 
and  ratification  by  the  voters  at  the  polls  being  sufficient  with- 
out repeating  the  operation  the  following  year.  If  the  propo- 
sition fails  at  the  polls,  no  similar  proposal  can  be  submitted 
for  ratification  within  one  year.  The  extreme  restrictions  in 
Massachusetts  are  due  to  the  strenuous  efforts  and  powerful 
influence  of  the  corporations.  It  took  a  three  years'  hard  fight 
to  get  the  law,  and  even  then  it  was  not  possible  to  pass  it 
except  with  corporation  amendments  which  seriously  dimin- 
ish its  value. 

In  Minnesota,  any  municipality  may  build  or  buy  water, 
gas,  electric  light  or  heat  plants  and  sell  to  inhabitants,  and 
under  another  law  may  buy  street  railways  or  telephone  or 
power  plants.     (See  below.) 

In  Missouri,  any  municipality  may  build  or  buy  water,  gas, 
electric  light  or  power  plants  and  sell  water,  gas,  etc.,  to  in- 
habitants. 

In  Kansas,  under  the  laws  of  1897,  any  municipality  may 
build  or  buy  water,  gas,  electric  light  or  power,  water  or  heat- 
ing plants,  and  sell  to  inhabitants. 

In  Nebraska,  1st  and  2d  class  cities  may  build  or  buy  gas 
or  electric  light  plants  and  sell  the  product. 

In  California,  there  are  general  provisions,  1st,  that  the 
common  council  may  provide  for  lighting  the  city;  2d,  that 
6th  class  cities  (all  municipalities  under  3,000  inhabitants) 
may  acquire,  own,  construct,  maintain  and  operate  street  rail- 
ways, telegraph  and  telephone  systems,  gas  and  other  works 
for  heat  and  light;  3d,  that  5th  class  cities  (municipalities  be- 
tween 3,000  and  10,000  population)  may  purchase,  lease  or 
construct  water  or  electric  light  works  and  sell  water,  heat 
light  and  power 


448  THE    BONDAGE   OF    CITIES 

South  Carolina's  constitution,  1895,  provides  that  any 
city  or  town,  on  a  vote  of  a  majority  of  its  electors,  may  build 
or  buy  water  works  or  light  plants  and  supply  its  inhabitants. 

The  Washington  statutes  of  1897,  Chap.  112,  provide  that 
any  incorporated  city  or  town  may  construct  or  buy,  own  and 
operate,  water  works  (within  and  without  its  limits),  gas,  elec- 
tric light,  or  other  light  plants  (to  serve  the  city  or  town  and 
its  inhabitants  with  public  or  private  supplies  of  water,  light, 
heat  and  power),  and  cable,  electric  or  other  railroads  within 
its  limits  for  the  transportation  of  freight  or  passengers.  A 
referendum  is  necessary,  and  if  debt  is  to  be  incurred  the 
proposition  must  be  adopted  by  a  3/5  vote  at  the  polls. 

The  "Indiana  Statutes,"  of  1896,  contain  three  most  inter- 
esting provisions  as  to  franchises:  one  relating  to  cities  of  35,- 
000  to  50,000  population,  another  to  cities  between  50,000 
and  100,000  and  a  third  to  cities  over  100,000.  The  three 
long  enactments  are  identical.  Their  substance  is  that  the  city 
board  of  public  works  (appointed  by  the  mayor)  shall  have 
power  to  purchase  or  erect,  by  contract  or  otherwise,  and  oper- 
ate gas  works,  electric  light  works,  street  cars  and  other  lines 
for  the  conveyance  of  passengers  and  freight,  telegraph  and 
telephone  lines,  steam  and  power  houses  and  lines,  to  supply 
the  city  and  its  inhabitants,  or  to  purchase  and  hold  a  majority 
of  the  stock  of  corporations  organized  for  either  of  the  above 
purposes.  Also  to  contract  for  the  furnishing  of  gas,  steam  or 
electricity,  light  or  power  to  said  city  or  the  citizens  thereof, 
and  in  such  contract  fix  charges.  To  authorize  and  empower 
by  contract,  telegraph,  telephone,  electric  light,  gas,  steam, 
or  street  car  or  railroad  companies  to  use  any  street,  and  pre- 
scribe terms  and  conditions  of  such  use,  except  that  franchises 
are  not  to  be  for  longer  term  than  25  years  nor  for  a  less  re- 
turn than  2  per  cent,  of  the  gross  receipts.  The  exercise  of  all 
these  powers  is  subject  to  the  approval  of  the  city  council 
which  has  "exclusive  control  of  the  streets."  New  Jersey, 
Missouri,  Texas  and  Kentucky  also  have  provisions  giving 
municipal  authorities  "exclusive"  control  of  streets. 

In  Kentucky,  2d  class  cities  (20,000  to  100,000  people) 
may  provide  lights,  by  themselves  or  others,  for  streets  and 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  449 

inhabitants;  3d  class  cities  (8, 000  to  20,000  people)  may  pro- 
vide the  city  and  its  inhabitants  with  water,  light,  heat,  power, 
and  telephone  service  by  contract  or  works  of  its  own;  4th 
class  cities  may  light  public  places  by  gas  or  otherwise;  and 
in  1st  class  cities  (over  100,000  i.  e.,  Louisville)  the  board  of 
public  works  has  exclusive  control  of  the  lighting  and  use  of 
streets.  The  Kentucky  constitution  of  1891  provides,  §163, 
that  "no  street  railway,  gas,  water,  steam  heating,  telephone 
or  electric  light  company  in  any  city  or  town"  shall  lay  its 
tracks,  pipes,  wires,  etc.,  without  consent  of  the  local  legisla- 
tive authority,  and  §164  declares  that  "no  county,  city,  town, 
taxing  district  or  other  municipality  shall  be  authorized  or 
permitted  to  grant  any  franchise  or  privilege  or  make  any  con- 
tract in  reference  thereto  for  a  term  exceeding  20  years.  Be- 
fore granting  such  franchise  or  privilege  for  a  term  of  years, 
such  municipality  shall  first,  after  due  advertisement,  receive 
bids  therefor  publicly,  and  award  the  same  to  the  highest  and 
best  bidder.  But  it  shall  have  the  right  to  reject  any  and  all 
bids.    This  section  shall  not  apply  to  a  trunk  railway." 

This  principle  of  sale  of  franchise  to  the  highest  bidder  is 
also  recognized  in  New  York,  Ohio,  Wisconsin,  Missouri, 
Louisiana  and  California.  In  all,  the  method  has  been  applied 
to  street  railway  franchises,  and  in  California,  Wisconsin  and 
Kentucky  it  has  a  much  wider  application.  Generally  the  sale 
is  to  the  company  bidding  the  highest  percentage  of  gross 
receipts,  but  the  bid  may  be  for  so  much  cash  down,  as  in  New 
Orleans,  or  the  franchise  may  be  sold  to  the  company  agreeing 
to  serve  on  the  lowest  fare,  as  in  the  Ohio  provision  (relating 
to  2d  class  cities,  i.  e.,  Cleveland).  New  Orleans  has  sold 
street  railway  franchises  for  cash  at  various  times  since  1879 
when  she  first  advertised  for  sealed  proposals.  Chap.  370  of 
Wisconsin's  laws  of  1897,  provides  for  publication  of  full 
specifications,  rates,  etc.,  and  advertisement  for  bids,  before 
any  city  or  village  can  grant  a  franchise  to  establish  and  oper- 
ate a  street  railway,  gas  or  electric  plant,  or  water  works  or 
telephone  system  or  other  franchise  involving  the  use  of  the 
streets.  Chap.  361  provides  for  the  submission  of  water  and 
lighting  grants  to  the  voters  at  the  polls,  and  requires  such 
submission  if  20  per  cent,  of  the  voters  petition  for  it. 

29 


450  MUNICIPAL  LIBERTY. 

In  California,  by  the  laws  of  1897,  "every  franchise  or 
privilege  to  erect  or  lay  telegraph  or  telephone  wires  or  con- 
struct or  operate  street  railways-  on  any  public  street  or  high- 
way, to  lay  gas  or  water  pipes,  erect  poles  or  wires  for  trans- 
mitting electric  power,  or  light,  or  to  exercise  any  other  privi- 
lege whatever  hereafter  proposed  to  be  granted  by  the  board 
of  supervisors,  trustees,  county  commissioners  or  other  govern- 
ing body  of  any  city,  county  or  town  (excepting  steam  rail- 
roads, telegraph  lines,  and  renewals  of  franchises  for  piers,, 
chutes  and  wharves)  shall  be  granted  on  the  following  con- 
ditions/' viz:  the  application  must  be  advertised  for  10  days, 
with  a  statement  that  bids  of  so  much  per  cent,  (not  less  than 
3  per  cent.)  of  gross  receipts  will  be  entertained.  The  bids 
must  be  opened  in  open  session  and  the  franchise  or  privilege 
must  be  awarded  to  the  highest  bidder.  The  gain  to  the 
people  from  such  notice  and  sale  is  a  matter  of  much  interest, 
as  is  also  the  exception  clause. 

Ey  a  Missouri  statute  of  1895,  cities,  towns  and  villages 
are  to  sell  all  franchises  for  electric  light,  gas,  water  or  transit 
to  the  bidder  offering  the  highest  percentage  of  gross  receipts. 

In  New  York  state,  since  Jan.  1,  1875,  the  legislature  has 
been  under  constitutional  prohibition  in  respect  to  special 
legislation  granting  the  right  to  lay  down  railroad  tracks,  or 
confer  exclusive  privilege,  franchise  or  immunity,  and  has  not 
been  able  even  under  general  law  to  give  street  railway  com- 
panies a  right  to  construct  and  operate  roads  in  the  streets  of 
cities  and  towns,  the  consent  of  the  local  authorities  being  re- 
quired for  this  by  the  constitutional  amendment  of  "Nov.  3, 
1874;  in  force  Jan.  1,  1875.  In  1884,  the  legislature  gave 
any  incorporated  city  or  village  the  right  to  sell  street  railway 
franchises  at  auction.  The  law  did  not  require  such  sale.  It 
was  merely  optional,  and  the  New  York  Board  of  Alderman 
took  advantage  of  this  fact  to  give  the  Broadway  Surface  Rail- 
road Company  the  right  to  operate  a  road  from  Union  Square 
to  South  Ferry,  exacting  nothing  but  the  3  per  cent,  of  gross 
receipts  (5  per  cent,  after  the  first  five  years)  which  was  the 
minimum  allowed  by  the  law.  The  Cable  Railway  Company 
had  offered  $1,000,000  cash  in  addition  to    the    statute   per- 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       451 

centages,  but  the  Broadway  Surface  people  bribed  aldermen 
at  the  rate  of  $20,000  each  and  secured  the  franchise  at  a 
cost  of  $500,000  for  bribes,  lobby  expenses,  etc.1 — half  a 
million  went  to  a  few  for  corruption,  in  place  of  a  million  to 
the  public  for  an  honest  franchise.  Almost  all  the  aldermen 
and  officers  of  the  Broadway  Company  were  indicted,  and  a 
few  convicted,  and  public  indignation  over  the  transaction  led 
to  the  Cantor  Act  of  1886,  which  provided  that  all  incorpor- 
ated cities  and  towns  must  sell  their  street  railway  franchises 
at  auction  (except  in  case  of  companies  already  organized  in 
municipalities  of  less  than  40,000  people).  The  public  sale 
of  street  railway  franchises  was  now  obligatory  instead  of 
optional.  But  as  public  sentiment  and  attention  lapsed,  cor- 
porate interests  made  themselves  felt,  and  in  1890,  the  auction 
plan  was  restricted  to  cities  above  90,000  inhabitants.  In 
1892  the  Cantor  plan  was  further  eliminated  from  the  law  so 
that  it  ceased  to  exist  except  as  to  the  single  city  of  New  York, 
and  now  the  charter  of  Greater  New  York  leaves  it  in  doubt 
whether  the  auction  principle  has  not  been  banished  even 
from  that  city.  The  charter  says  that  "nothing  in  this  act 
shall  repeal  or  affect  the  existing  general  laws  of  the  state  in 
respect  to  street  surface  railroads,"  but  §77  looks  the  other 
way  and  §§73  and  74  (see  below)  quite  clearly  indicate  an 
intent  to  substitute  full  discretion  and  publicity  for  the  obliga- 
tory auction  plan.  It  would  seem,  therefore,  that  at  present 
cities  and  towns  in  New  York  may  sell  street  railway  fran- 
chises at  auction  if  they  wish,  but  are  not  obliged  to. 

Several  remarkable  sales  have  occurred.  In  1887,  a 
premium  of  26.3  per  cent,  of  the  gross  receipts  was  bid  for  the 
28th  and  29th  Street  franchise,  and  35  per  cent,  for  the  Ful- 
ton Street  line  in  New  York.  The  latter  agreement  was  com- 
promised after  6  years  by  the  Sinking  Fund  Commissioners 
for  5  &  1/8  per  cent.,  as  the  company  claimed  that  it  was  losing 
money,  and  the  28th  and  29th  Street  crosstown  line  was  not 
operated  till  the  Commissioners  agreed  to  let  the  company  off 
for  half  of  1  per  cent,  above  the  3  per  cent,  statute  minimum. 
In  1895,  the  Third  Avenue  Extension  was  sold  for  $250,000 

C1)  N.  Y.  Senate  Doc.  79,  1886,  Report  of  Road  Cora,  on  Broadway  S.R.O©. 


452 


THE    CITY    FOR    THE    PEOPLE. 


cash  and  a  premium  of  38^  per  cent.,  making,1  \/ith  the  sta- 
tute minimum,  41£  per  cent,  each  year  for  the  first  five  and 
43^  per  cent,  each  year  afterward  besides  the  $50  car  tax.  In 
the  same  year  The  People's  Traction  Company  and  its  com- 
petitors carried  the  bidding  into  the  clouds  for  the  capture  of 
a  short  route  important  to  the  People's  Company  as  a  connect- 
ing link  between  its  system  and  a  prospective  line  outside  the 
city  limits.  At  the  end  of  the  day's  bidding,  the  People's 
Company  had  offered  6975  per  cent.,  or  about  70  times  the 
entire  gross  receipts.  The  next  day  the  People's  Co.  and  one 
of  its  rivals  were  ready  to  go  on  bidding,  but  a  third  company 
got  out  an  injunction  on  the  sale.  The  case  went  into  the 
courts,  and  the  franchise  was  awarded  to  the  People's  Co.  for 
100  per  cent.,  but  an  appeal  has  been  taken.  It  is  said  that  the 
People's  Co.  could  afford  to  pay  many  times  the  receipts  of  the 
short  line  rather  than  lose  the  link  in  its  contemplated  system. 
And  it  is  also  said  that  the  company  could  arrange  to  make  no 
•charge  for  transfer  over  the  short  route  so  that  the  gross  re- 
-ceipts  would  be  nothing  and  the  city  would  get  nothing  how- 
ever high  the  bids  might  run,  since  6975  per  cent,  or  10  mil- 
lions per  cent,  of  nothing  is  still  nothing. 

The  charter  of  Greater  New  York  provides  (§16)  that  the 
municipal  assembly  may  grant  street  railway  franchises,  and 
establish,  maintain  and  regulate  ferries.  By  §71  the  rights  of 
the  city  in  and  to  its  water  front,  ferries,  wharf  property,  land 
under  water,  public  landings,  wharves,  docks,  streets,  avenues, 
parks  and  other  public  places  are  hereby  declared  to  be  in- 
alienable. By  §73,  no  franchise  or  light  to  use  the  streets 
shall  be  granted  by  the  municipal  assembly  for  more  than  25 
years,  but  the  grant  may,  at  the  city's  option,  contain  a  pro- 
vision for  renewals  (at  fair  revaluations)  not  exceeding  25 
years  in  the  aggregate.  The  grant  may  provide  that,  at  the 
end  of  the  term,  the  whole  property  of  the  grantee  shall  be- 
come the  property  of  the  city  without  further  compensation, 
or  it  may  provide  for  a  valuation  and  payment  of  that  valua- 
tion.    If  the  property  becomes  public   without   money   pay- 


0)  This  sale  was  annulled  on  the  ground  that  the  cash  bonus  was  beyond 
•the  law,  and  that  the  extension  Included  two  routes.  Beckman  r.  Third  Ave. 
«R.  R.  Co..  153  N.  Y.,  144. 


HOME   RULE   FOR   OUR   CITIES.  453 

inert,  the  city  may  operate  it,  or  lease  it  f  r  a  term  not  exceed- 
ing 20  years.  If  the  city  takes  the  property  by  payment  it 
must  operate  it  for  at  least  5  years,  after  which  it  may  con- 
tinue to  operate  it  or  may  lease  it  for  limited  periods  in  the 
same  manner  as  it  does  its  docks  and  ferries.  By  §74,  the  full 
terms  of  every  proposed  grant  of  franchise  or  right  to  use 
the  streets  must  be  published  in  the  City  Record  for  20  days 
before  the  grant  is  made  and  at  least  twice  in  2  daily  news- 
papers, must  be  approved  by  the  board  of  estimate  and  appor- 
tionment, must  receive  a  3/4  vote  by  ayes  and  noes  in  each 
branch  of  the  assembly  and  the  approval  of  the  mayor.  A 
5/6  vote  of  each  branch  is  necessary  to  pass  a  franchise  over 
the  mayor's  veto,  and  at  least  30  days  must  intervene  between 
the  introduction  of  any  franchise  granting  ordinance  and  its 
final  passage. 

The  New  York  Charter  is  complexly  careful  or  carefully 
complex,  and  yet  it  does  not  adopt  the  most  important  of  all 
checks  upon  corrupt  or  injudicious  franchise  grants,  the  in- 
itiative and  referendum,  which  Ave  have  found  in  the  new 
freehold  charter  of  San  Francisco,  and  in  a  less  complete  form, 
in  the  laws  of  "Wisconsin,  Michigan,  Massachusetts,  Florida,. 
South  Carolina,  Colorado,  Washington,  Pennsylvania,  and 
Iowa.     Other  examples  will  occur  as  we  proceed. 

LO-CAL  POWERS  OF  CONSENT,   GRANT,  &C. 

The  reader  has  doubtless  noted,  that  as  I  predicted,  we  have 
drifted  from  powers  of  ownership  to  powers  of  grant.  The 
laws  often  deal  with  the  two  in  the  same  paragraph,  and  they 
are  in  reality  merely  complementary  portions  of  the  right  of 
local  self  government  in  respect  to  local  franchises.  "We  have 
covered  the  entire  body  of  statute  law,  and  find  that  there  is. 
but  one  state  in  the  Union  (Louisiana)  that  has  no  general 
legislation  requiring  local  consent  for  street  railways,  water, 
gas,  electric  light,  telegraph,  telephone  and  other  street  ser- 
vices, or  empowering  municipalities  to  grant  such  franchises.1 
Delaware,  Maryland  and  Nevada  have  almost  nothing,   but 


(a)  Perhaps  the  Louisiana  law  of  1896  empowering  municipalities  to  make 
their  own  charters  should  be  considered  as  an  indirect  contribution  under 
this  head. 


454  THE    BONDAGE    OF    CITIES 

still  there  is  a  glimmer  of  light  even  in  Delaware,  it  being 
enacted  that  a  street  railway  shall  not  use  a  county  bridge  or 
road  without  consent  of  the  county  levy  court  elected  by  the 
citizens  of  the  county — a  mere  scintilla  of  local  self  govern- 
ment in  respect  to  franchises,  but  enuf  to  save  Delaware's 
general  laws  from  Egyptian  darkness.  Maryland  requires 
consent  of  municipal  authorities  for  water  works,  and  Nevada 
authorizes  cities  and  towns  to  grant  gas  and  water  privileges 

From  these  minimum  recognitions  of  local  right  we  pass  by 
a  series  of  gradations  thru  the  meagre  measures  of  Alabama, 
North  Carolina,  Georgia,  Arkansas  and  New  York  up  to  the 
larger  provisions  of  Massachusetts,  South  Dakota,  Pennsyl- 
vania, Ohio,  Illinois,  Colorado  and  Montana,  and  the  sweeping- 
laws  and  constitutional  safeguards  of  Indiana,  Iowa,  Wis- 
consin, Minnesota,  Missouri,  Kansas,  California,  Kentucky, 
Tennessee,  Rhode  Island,  Utah,  Wyoming,  Washington. 
South  Carolina  and  Florida. 

One  of  the  commonest  recognitions  of  local  right  to  control 
street  services  is  a  provision  requiring  street  railways  to  get 
local  consent  to  construct  their  tracks  and  subjecting  their 
locations  to  municipal  control.  In  16  states  (California, 
Wyoming,  Utah,  Montana,  Kentucky,  Alabama,  North  Da- 
kota, Kansas,  IOWA,  Missouri,  Minnesota,  Wisconsin, 
Indiana,  Ohio,  New  York,  Rhode  Island)  there  are  effective 
provisions  relating  to  the  grant  of  street  railway  rights  and 
franchises  by  municipalities.  The  states  in  italics  provide  for 
sale  of  the  franchise,  and  Iowa  requires  a  referendum.  Thirty- 
five  states  expressly  require  local  consent,  and  generally  it  is 
a  necessity,  there  being  no  appeal  from  the  local  decision.  In 
13  states  (New  York,  West  Virginia,  Illinois,  Missouri, 
Nebraska,  South  Dakota,  South  Carolina,  Georgia,  Alabama, 
Kentucky,  Idaho,  Colorado,  and  Wyoming)  a  provision  re- 
quiring street  railways  in  cities  and  towns  to  get  the  consent 
of  the  local  authorities  has  been  put  in  the  constitution. 

A  constitutional  clause  of  this  kind  is  of  course  bed-rock, 
not  liable  to  be  overturned  by  legislative  action  or  appeal  to 
state  commission  or  court — a  bit  of  real  municipal  sovereignty. 
In    Kentucky,    as    we    have  seen,    the    provision    requir- 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  455 

ing  local  consent  includes  steam-heating,  gas,  water,  street 
railway,  telephone,  and  electric  light  in  cities  and  towns,  and 
in  every  case  the  municipality  must  sell  the  franchise  to 
the  highest  bidder  for  a  term  not  over  20  years.  In 
South  Carolina  also,  consent  of  the  municipal  authorities 
is  necessary  by  the  constitution  not  only  for  street  railways, 
but  for  any  railroad  track,  gas  or  water  pipes,  telegraph,  tele- 
phone or  electric  light  wires.  In  Wyoming,  the  constitutional 
clause  covers  the  telegraph,  telephone  and  electric  light,  and 
in  South  Dakota  it  covers  the  telegraph  and  telephone. 

Twenty-six  states  make  local  consent  necessary  for  gas  (con- 
stitutional provision  in  Kentucky  and  South  Carolina,  statute 
elsewhere),  and  15  of  these  states  with  14  others  confer  upon 
local  authorities  the  right  to  grant  gas  privileges.  A  right  to 
grant  must  be  distinguished  from  a  requirement  for  local  con- 
sent. The  latter  clearly  indicates  a  policy  of  local  control,  but 
accords  no  right  of  initiation;  while  authority  to  grant  gives 
power  of  initiation,  but  unless  the  authority  is  exclusive  it 
affords  no  certainty  of  control.  A  mere  power  to  grant  does 
not  exclude  the  idea  of  independent  grants  by  the  legislature 
directly ;  it  is  on  its  face  only  a  concurrent  power.  A  require- 
ment of  local  consent  is  on  its  face  a  veto  power  and  may  be 
more  valuable  than  a  right  to  grant  unless  it  is  exclusive,  in 
which  case  it  includes  the  local  consent  idea,  and  is  a  creative 
and  a  veto  power  in  one. 

Twenty-one  states  require  local  consent  for  electric  light 
(constitutional  provision  in  South  Carolina,  Kentucky  and 
Wyoming);  10  of  the  21  and  14  others  confer  the  right  of 
grant.  Eighteen  states  recognize  by  general  law  the  principle 
of  local  consent  in  respect  to  telegraph  (Kentucky,  South 
Carolina,  South  Dakota  and  Wyoming  in  the  constitution); 
5  of  the  18  and  8  others  accord  to  some  or  all  municipalities 
the  right  to  grant  telegraph  privileges.  With  the  telephone 
it  is  local  consent  in  17  states  (same  4  in  constitution);  6  of 
the  17  and  10  others,  grant.     (See  Appendix  II,  U.) 

These  summaries  afford  some  idea  of  the  almost  universal 
recognition  of  the  right  of  local  self  government  in  respect 
to  streets  and  franchises.     The  field  of  this  recognition  is  of 


456  MUNICIPAL  LIBERTY. 

course  much  broader  than  this  discussion.  We  have  not  at- 
tempted to  deal  with  municipal  regulation  of  local  services — 
a  topic  of  enormous  girth.  The  lowest  forms  of  power  that 
might  fall  within  the  lines  of  local  consent  and  right  of  grant 
are  what  may  be  called  the  right  of  designation  (which  is 
really  a  regulative  power)  and  the  right  of  consultation.  An 
example  of  the  first  is  the  local  right  to  designate  locations  for 
railway  tracks  or  telegraph  posts  without  the  right  to  refuse 
all  locations.  (See  below.)  An  example  of  the  second  is  the 
right  of  selectmen  to  grant  or  revoke  licenses  for  telegraph, 
telephone  or  electric  light  poles  and  wires,  subject  to  appeal 
to  the  Superior  Court,  as  in  New  Hampshire. 

The  highest  form  of  authority  is  a  sweeping  statute,  or  bet- 
ter still  a  constitutional  provision,  giving  complete  and  ex- 
clusive powers  of  grant  and  revocation,  purchase,  erection, 
ownership  and  operation  to  every  municipality,  subject  to  the 
initiative  and  referendum,  and  possibly,  in  some  cases,  to  the 
consent  of  a  majority  of  the  property  owners  chiefly  affected. 
The  principle  of  the  initiative  in  respect  to  these  franchises  is 
recognized  in  the  general  legislation  of  three  states  (Wiscon- 
sin, Michigan  and  Nebraska),  and  the  referendum  in  eleven 
(Colorado,  Florida,  Iowa,  Massachusetts,  Michigan,  Minne- 
sota, Nebraska,  Pennsylvania,  South  Carolina,  Washington 
and  Wisconsin).  In  most  cases  these  principles  are  only  parti- 
ally applied,  as  follows : 

Colorado,  gas,  electric  light  and  water. 

Florida,  gas,  electric  light. 

Iowa,  gas,  water,  electric  light  and  power,  telegraph,  tele- 
phone and  street  railways. 

Massachusetts,  gas  and  electric  works. 

Michigan,  gas,  electric  or  other  light. 

Minnesota,  gas,  electric  light,  street  railway,  water,  tele- 
phone, heat  and  power. 

Pennsylvania,  3d  class  cities,  gas,  electric  light,  water. 

South  Carolina,  gas,  electric  light,  water. 

Washington,  gas,  electric  or  other  means    of   light,    heat„ 
power,  water,  cable,  electric  or  other  railways. 

Wisconsin,  gas,  electric  light,  water. 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.       457 

Nebraska,  municipal  initiative  and  referendum  covering  all 
contracts,  grants,  franchises  and  ordinances  of  every 
sort  (law  of  1897),  but  the  percentage  of  voters  re- 
quired to  demand  the  referendum  is  high. 

South  Dakota,  general  state  and  municipal  initiative  and 
referendum  (amendment  to  constitution,  passed 
legislature,  1896,  adopted  by  the  people  in  Nov., 
1898,  by  a  large  majority). 

We  have  included  water  where  it  occurred  in  connection 
with  the  franchises  specially  discussed,  but  have  not  searched 
specially  for  referendum  provisions  relating  to  water  works, 
or  possibly  the  list  would  be  somewhat  longer. 

The  consent  of  property  owners  is  required  by  general  laws 
as  follows: 

Connecticut  (see  below)  electric  light,  telegraph,  telephone. 

Illinois,  gas,  electric  light,  L  roads. 

Kansas,  cities  over  40,000,  street  railways. 

Missouri,  street  railways. 

North  Dakota,  street  railways. 

New  York,  (see  below)  street  railways. 

Sometimes  the  owners  of  more  than  half  the  frontage  must 
assent  (as  in  Illinois,  North  Dakota,  etc.,  see  below);  some- 
times the  owners  of  half  or  two-thirds  of  the  value  (see  New 
York  below) ;  sometimes  a  majority  of  the  persons  owning  pro- 
perty on  the  line  (see  Kansas  below). 

In  Connecticut  and  New  Hampshire,  the  local  authorities 
have  exclusive  direction  of  the  places  of  tracks. 

In  Connecticut,  no  telegraph  or  telephone  or  electric  light 
company,  or  company  distributing  electricity  by  wires  or 
similar  conductors,  or  using  wires  or  conductors  for  any  pur- 
pose, can  place  them  in  the  streets  or  highways  without  con- 
sent of  the  adjoining  proprietors  or  of  tivo  county  commis- 
sioners (appointed  by  the  General  Assembly).  Subject  to 
this  and  to  appeal  to  the  superior  court  (appointed  by  the 
Governor  and  Legislature),  the  council  of  a  city  and  selectmen 
of  a  town  have  full  control  of  the  location,  re-location  or  re- 
moval of  the  aforesaid  wires  and  conductors.  In  New  Hamp- 
shire, appeal  lies  to  the  supreme  court  from  the  decision  of 


458  THE    CITY    FOR    THE    PEOPLE. 

selectmen  respecting  telegraph  and  telephone  privileges.  In 
Maine,  the  local  consent  to  street  railways  provided  for  by  the 
Laws  of  1895,  p.  81,  is  subject  to  appeal  from  the  municipal 
officers  to  the  supreme  court.  The  state  lets  the  municipality 
go  out  of  doors  and  walk  around  a  bit,  but  keeps  a  pretty  big 
string  tied  to  it;  except  the  right  to  build  or  buy  light  works, 
it  has  really  nothing  but  rights  of  consultation,  designation 
and  regulation — no  power  of  veto,  little  power  of  construction, 
very  little  real  sovereignty. 

Several  of  the  sweeping  provisions  above  mentioned  have 
already  been  noted  while  speaking  of  municipal  ownership 
(see  paragraphs  about  Indiana,  Iowa,  Wisconsin,  Missouri, 
California,  South  Carolina  and  Kentucky  a  few  pages  back). 

The  Minnesota  Statutes  (1894)  §2592,  provide  that  no  cor- 
poration shall  establish  gas,  electric  light,  heat,  transportation, 
or  other  improvement  except  on  obtaining  a  franchise  from 
the  city  or  village  council,  and  making  just  compensation,  and 
at  the  end  of  each  and  every  franchise  period  of  five  years  the 
council  may,  on  a  two-thirds  vote  of  the  electors  of  the  city  uir 
village,  buy  at  eminent  domain  value  and  own  and  operate 
the  gas,  electric  light,  street  railway,  water,  telephone,  heat  or 
power  works.  That  is  something  worth  having  in  the  way  of 
local  self  government.  Take  out  the  five  year  limitation,  ex- 
tend the  referendum  to  the  granting  of  franchises,  add  the 
initiative  on  a  5  per  cent,  petition,  authorize  cities  to  build  at 
the  start,  and  put  the  whole  thing  in  the  constitution,  beyond 
the  reach  of  legislative  interference,  and  municipal  freedom 
and  sovereignty  would  be  established  in  respect  to  the  most 
important  local  services  of  a  monopolistic  character. 

In  Kansas,  by  the  laws  of  '97,  any  municipality  may  grant 
gas,  electric  light,  water,  heat  or  power  privileges  for  a  term 
not  exceeding  20  years,  and  it  may  be  terminated  in  10  years. 
Forty  days  notice  of  application  for  a  franchise  or  renewal 
must  be  published,  and  the  municipality  must  reserve  rents 
for  the  use  of  streets.  Provision  is  made  for  filing  items  of 
construction  cost,  income  and  outgo  by  the  companies,  the 
items  to  be  open  to  public  inspection.  In  1st  class  cities  (those 
of  more  than  15,000  inhabitants)  the  mayor  and  council  may 


HOME   .RULE   FOR   OUR   CITIES.  459 

gTant  rights  of  way  for  telegraphs,  telephones  and  electric 
light  works;  may  grant  street  rights  for  laying  gas,  water  and 
■*team  pipes  and  conduits  for  electric  light  wires;  provide  for 
and  regulate  and  grant  railroad  and  street  railway  rights  in 
streets,  but  cannot  give  an  exclusive  right;  and  may  grant  per- 
mits to  mine  coal.  No  city  of  more  than  40,000  people  can 
grant  street  railway  rights  without  the  assent  of  a  majority- 
of  the  persons  owning  property  on  the  line. 

Tennessee  requires  local  consent  for  water,  gas,  and  street 
railways  and  provides  that  all  municipalities  may  grant  privi- 
leges in  the  streets.  Florida  requires  local  consent  for  tele- 
graph and  telephone;  authorizes  cities  and  towns  to  grant 
water,  gas  and  electric  light  privileges;  and  provides  that  fran- 
chises to  use  the  streets  for  a  public  use  shall  be  granted 
only  by  the  mayor  and  council.  Utah  requires  local  consent 
for  street  railways,  telegraphs  and  telephones,  and  provides 
that  city  councils  may  grant  franchises  for  water,  gas,  electric 
light,  street  railways  and  wires  in  streets,  and  may  permit  or 
prohibit  railroad  tracks.  In  Wyoming,  the  constitution  makes 
local  consent  necessary  for  street  railways,  telegraph,  tele- 
phone and  electric  light,  and  by  statute  local  consent  is  re- 
quired for  gas,  and  any  city  or  town  may  grant  gas,  or  electric 
light  privileges,  and  street  railway  franchises  are  not  to  ex- 
ceed 10  years  on  reasonable  conditions.  In  addition  to  the 
sweeping  power  of  grant  stated  on  p.  444,  the  Iowa  statutes 
provide  that  a  city  or  town  may  authorize  or  forbid  street  rail- 
way or  any  railroad  construction  in  the  streets.  In  Missouri 
also,  besides  the  constitutional  necessity  of  local  consent  for 
street  railways,  and  the  broad  statute  requiring  cities,  towns 
and  villages  to  sell  water,  gas,  electric  light  and  transit  fran- 
chises to  the  highest  bidder,  there  is  a  statute  relating  to  cities 
•of  the  3d  class  (3,000  to  30,000)  which  provides  that  the 
council  shall  have  exclusive  power  to  grant  street  railway 
franchises  with  the  assent  of  property  holders  along  the  route. 
Rhode  Island  provides  that  a  city  or  town  may  grant  "rights 
and  franchises  in,  over  or  under  highways,"  for  water,  gas, 
electric  light,  heat  or  power,  street  railways,  and  telephones. 
The  franchise  granted  may  be  exclusive  for  a  term  not  exceed- 


460 


THE   BONDAGE   OF   CITIES 


ing  25  years.  With  the  exception  of  California  and  Missouri; 
the  great  states  containing  the  giant  cities  have  not  taken  a 
very  advanced  position  in  respect  to  municipal  control  of 
franchises.  The  Constitution  of  New  York,  Art.  3,  §18, 
makes  consent  of  the  local  authorities  necessary  to  the  con- 
struction or  operation  of  a  street  railway  in  a  city  or  town. 
The  consent  of  the  owners  of  at  least  half  the  property  (that  is, 
half  in  value)  abutting  on  the  route  is  also  required,  or  else 
the  assent  of  three  commissioners  appointed  by  the  Appellate 
Division  of  the  Supreme  Court,  which  assent,  when  confirmed 
by  the  court,  will  answer  instead  of  the  consent  of  the  property 
owners,  but  nothing  will  take  the  place  of  the  consent  of  the 
local  authorities.  Under  this  constitution,  the  right  to  con- 
struct and  operate  a  road  in  the  streets  of  a  municipality  can 
only  be  obtained  from  the  local  authorities  and  on  such  terms 
as  they  choose  to  impose.  (People  v.  O'Brien,  111  N.Y.,  1.)  The 
legislature  can  authorize  and  regulate  the  organization  of 
street  railway  companies,  but  only  the  city  or  town  can  give 
those  companies  the  right  to  build  and  operate  in  their  streets. 
This  is  a  little  bit  of  real  sovereignty.  By  statute,  the  consent 
of  the  owners  of  two-thirds  of  the  abutting  property  is  neces- 
sary to  constitute  owners'  assent  to  a  street  railway  in  a  town? 
owners  of  half  value  will  do  in  a  city.  (1896  vol.  I,  p.  777.) 
A  gas  or  electric  company  must  get  municipal  consent  to  use 
the  streets. 

The  Illinois  constitution  requires  local  consent  for  street 
railways.  'By  statute,  local  consent  is  necessary  also  for  tele- 
graph and  telephone  wires  and  railroad  tracks.  No  L  road  can 
be  built  except  by  permission  of  the  council  or  trustees  on 
petition  of  the  property  owners  on  the  route.  No  city  council 
or  president  and  trustees  of  a  village  or  incorporated  town  can 
grant  a  franchise  or  right  to  lay  gas  pipes  or  wires  for  electric 
light  except  on  petition  of  land  owners  representing  more  than 
half  the  frontage  on  the  streets,  alleys,  etc.,  to  be  used.  (Laws 
of  1897,  p.  100.     See  also  Kev.  Stats.,  1895  and  1898.) 

In  Pennsylvania,  local  consent  is  necessary  for  street  rail- 
ways, gas,  electric  light,  heat  and  power  and  for  telegraph 
poles  and  wires. 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  461 

In  Massachusetts,  the  aldermen  of  a  city  and  selectmen  of 
a  town  may,  after  a  hearing,  grant  or  refuse  locations  for  street 
railways.  Local  consent  is  also  necessary  for  gas  and  electric 
light.  In  the  case  of  telegraph  and  telephone  companies  with 
state  franchises  the  local  authorities  may  designate  (hut  can- 
not refuse)  locations  for  posts,  etc.,  and  may  make  reasonable 
regulations  subject  to  appeal  to  state  courts.  Aside  from  this, 
the  selectmen  of  a  town  may  grant  telegraph  and  telephone 
franchises  to  individuals  or  companies  and  control  them  en- 
tirely.   (Pub.  Stat.  c.  27,  §§45,  48.)     §45  reads  as  follows: 

"The  selectmen,  upon  such  terms  and  conditions  as  they 
may  prescribe,  and  subject  to  the  provisions  of  chapter  109, 
as  far  as  applicable,  may  authorize  any  person  to  construct  a 
line  of  electric  telegraph  for  private  use  upon  and  along  the 
public  ways  of  the  town.  Upon  the  erection  of  such  line,  the 
posts  and  structures  thereof  within  such  ways  shall  become  the 
property  of  the  town,  and  the  selectmen  may  regulate  and  con- 
trol the  same,  and  may  at  any  time  require  alterations  to  be 
made  by  the  parties  using  the  same  in  the  location  or  erection 
thereof,  and  may  order  the  removal  thereof,  having  first  given 
such  parties  notice  and  an  opportunity  to  be  heard.  The  town 
may  at  any  time  attach  wires  for  its  own  use  to  such  posts  and 
structures  and  the  selectmen  may  permit  other  persons  to  attach 
wires  for  their  private  use  thereto  or  to  posts  and  structures 
established  by  the  town,  and  may  prescribe  such  terms  and 
conditions  therefor  as  they  deem  reasonable." 

A  similar  law  exists  in  Vermont. 

Note  the  clause  making  the  telegraph  posts  and  structures 
municipal  property  immediately  upon  erection.  Why  should 
not  the  same  principle  be  applied  to  every  local  service  that 
builds  its  works  in  the  streets?  Allow  a  reasonable  franchise 
term,  but  put  the  title  to  the  property  in  the  municipality 
either  at  the  start  or  at  the  expiration  of  the  franchise  period, 
without  further  compensation  than  that  involved  in  the  fran- 
chise grant  for  the  said  term. 

A  great  deal  more  space  could  be  devoted  to  these  matters, 
but  we  will  content  ourselves  with  the  following  summary  in 
tabular  form,  which  shows  at  a  glance  the  principal  provisions 
relating  to  local  consent  and  powers  of  grant. 


462 


MUNICIPAL  LIBERTY. 
TABLE  Iir. 


St.  Ry. 

j    Gas 

Elec.  1. 

Teleg. 

Teleph. 

!  Water 

Rd$. 

Heat      Power 

Me 

i   1.  c.  a. 

,      1.  c. 

i  . 

j  1.  c.  a. 

I.e. 

K« 

I.e. 

1.  c.  C. 

1.  O.  0. 

i    g.  b. 
I.e. 
1.  c. 

1.  c. 
|     ..c. 

l.c. 

l.c 
l.c. 

1.  c. 

fl.e. 

X  g. 

l.c. 
l.c. 

1.  e.  o. 
a, 
l.c. 

| 

I.e. 

N.  H 

Vt 

1.  c.  a. 

{ A. 
i8gd. 

1.  e.  a. 

;  A 
A 

?■ 

(    1.  e.  o. 

a. 

l.c. 

:     1.  e. 

i 

g- 

:      { 

R.  I 

g- 
l.c. 

,.0. 

g. 
g- 

>.cg:c. 

g- 
g. 

g- 

1.  c.  o. 
a. 

;    i.c. 

'      i.e. 

! 

;  g.  exc. 

I  1st  cl. 

N.Y i 

N.J 

Pa 

1.  e. 

X 

1  c. 

Del 

l.c. 
l.c. 

lgc. 

L.  1.  c. 
&o. 

l.c. 
g- 

g- 
l.c. 

g. 

A. 

l.c. 

Md 

i.  c.  r. 

1     g.  b. 
I.e. 

,.cg-C. 

LKds 

1.  c.  &  0. 

I.e. 

f  I.e. 

1    g. 

I.e. 
g.  o. 

I.e. 

A 

g- 
g- 

W.  Va 



Ohio 

l.c. 
lSc. 

,0. 

Ind | 

111 J 

g.  0. 

\ 

fl.e. 
X    g. 

1.  c. 
g.  b.  R. 

1.  c. 
g- 

g.b. 

g.R. 
1.  c. 
g- 

l.c. 
I.e. 

,6c. 

l.c. 

1.  c.  C 

{, 

g- 

g- 

fl.e. 

t  g. 

A. 

1.  <\  C. 
g- 
I.  c. 

C,6o. 

(ft 

l.c. 

g- 

g.R. 
1.  c. 

g- 

g.b. 

g.R. 
i.e. 
g. 

.8c. 
1.  c. 

'"'i.e.' 

1.  c.  C. 

l.c. 

g.R. 
l.c. 

g. 

g.b. 
g.R, 

1.  c. 

g. 
g- 

1.  c.  C. 

g- 

g- 
l.c. 

g- 

lgc. 

1.  c.'  C. 

g- 

lge. 
g.R. 

™                 f 

........... 

g- 

It 

g- 

Wise J 

Minn | 

Mo -1 

ti 

g- 

1.  c.  C. 

g.b. 

0. 

I.e. 
g.R. 
I.  c. 

g.  1st  el. 
o.  40,000 
1.  c.  C. 

1.  c.  C. 
I.e. 

V, 

Tc."c.' 

1.  c.  C. 

g- 

j 

Iowa A 

i 

g.  R. 

g.R. 

g.R> 

Kans ■< 

Neb 

g.  lstcl. 

g.  1st  cl. 

g- 

8.  Dak 

N.  Dak | 

Va 

1.  e.  C. 
l.c. 

l.c. 

1.  c.  C. 

1.  c.  C. 

1    0 

1.  c.  C. 

N.  Car 

8.  Car 

Ga 

Fla 

g. 

g 

g- 

....... „... 

g- 

l.c. 
g- 

Ala 

1.  c.  U 

Miss 

La 

l.c. 

ft. 

g. 

1.  o.  C 

S- 

Texas 

Ark 

Tenn j 

K' { 

Mont j 

g. 
1.  c.  C. 

lgc. 

7K\ 
■ec. 

; 

g. 
1.  c.  C. 

A 

g- 

g- 
1.  c.  C 

1.  c.  C. 
l.c. 
g- 

Idaho 

Colo 

l.c. 
g.R. 



l.c.    ; 
............ 

l.c. 

l.c. 

g. 

Utah | 

Nev 

,Sc. 

g- 
g. 

lgc. 
g.b. 

g- 

g. 
g- 

g.  1st  cl. 

g- 

,8j-  ! 

g-  b.     j 

Wyo { 

Ore 

Wash 

1.  c.  C. 
g- 

lge 

1.  c.  C. 

g- 

g.  1  c. 

1.  c.  C.  ' 

i.  c.  c. 

g- 
g.(3dd.)i 

g.(3d'cl.) 

- {| 

l.c. 

g.b. 

g.b.  j 

g.U.     , 

g.b. 

See  explanation  on  next  page.    Dots  are  run  across  blank  spaces  to  carry 
the  eye  where  there  is  any  further  entry  on  the  same  line. 


LOCAL  GOVERNMENT  BY  THE  LOCAL  PEOPLE.      463 

In  this  table  1.  c.  means  local  consent,  1.  c.  o.  or  o.  alone  means 
consent  of  owners  of  property  along  the  line  of  railway,  etc 

d,  means  right  to  designate  locations, 

a,  means  appeal  to  court  or  commissioners, 

g,  means  local  power  to  grant, 

g.  b.  means  sale  or  grant  to  highest  bidder. 

R,  means  referendum  necessary, 

L,  means  elevated  road, 

C,  means  by  constitutional  provision. 
A  power  of  grant,  if  exclusive,  is  of  course  equivalent  to  requir- 
ing local  consent,  altho  the  laws  of  the  state  may  contain  no  specific 
provision  as  to  local  consent. 

Municipalities  that  have  been  given  control  of  their  streets  may 
grant  street  railway  and  other  rights  in  them.  (Thompson's  Law 
of  Electricity,  §26.) 

The  legislative  tendency  to  scatter  provisions  relating  to  a  given 
topic  thruout  big  volumes  of  statutes,  putting  some  in  solitary  con- 
finement in  secluded  spots,  and  tucking  others  cosily  under  the 
wings  of  statutes  apparently  belonging  to  an  entirely  different 
species,  together  with  the  very  imperfect  indexing  that  character- 
izes many  of  our  statute  books,  has  made  it  very  difficult  for  the 
writer  and  his  assistants  to  be  absolutely  sure  that  all  the  provis- 
ions relating  to  local  consent  for  street  franchises,  etc.,  have  been 
captured.  If  any  reader  notes  an  omission  and  will  send  to  the 
author  or  publisher  a  reference  to  the  omitted  statute,  the  favor 
will  be  deeply  appreciated. 

A  municipal  right  arising  from  statute  may,  of  course,  at 
any  time,  be  altered  or  repealed.  Theoretically,  therefore,  no 
number  of  such  rights  can  constitute  any  real  municipal  sov- 
ereignty or  assured  power  of  self  government,  such  as  state 
and  nation  enjoy  in  respect  to  their  particular  affairs,  and  such 
as  cities  and  towns  should  enjoy  in  respect  to  their  local  busi- 
ness concerns.  The  practical  fact  accords  with  the  theory  to 
a  considerable  extent.  New  laws  and  old  ones  not  much  used 
are  easily  changed  if  corporate  interests  require  it.  It  is  not 
necessary  to  repeal.  A  little  insignificant  looking  amendment 
that  may  pass  without  attracting  any  general  attention  can 
take  the  life  all  out  of  a  law.  When,  however,  a  law  confer- 
ring important  privileges  has  grown  into  the  life  of  the  people 
and  has  come  to  be  regarded  as  part  of  their  natural  rights, 
it  is  apt  to  be  so  jealously  guarded  that  it  takes  on  something 
of  the  stability  of  a  constitutional  provision,  tho  it  cannot 
attain  quite  the  same  vigor  and  certainty  until  we  have  the  ref  - 


464  THE    CITY    FOR    THE    PEOPLE. 

erendum,  for  the  legislature  can  act  counter  to  the  people's 
interest  and  wish  if  the  motive  be  sufficient,  no  matter  how 
powerful  the  protest  may  be. 

The  statutes  contain  many  laws  affecting  municipal  rights 
which  fall  outside  the  scope  of  Table  II.  Some  of  these  are 
very  interesting.  For  example,  the  Montana  laws  of  1897 
provide  that  cities  and  towns  may  establish  free  employment 
offices,  regulate  and  prohibit  the  wearing  of  hats  and  bonnets 
at  theatres  or  public  places  of  amusement,  provide  for  planting 
trees,  etc.  In  Maine,  any  town  may  raise  money  to  propagate 
fish,  and  I  am  told  that  a  number  of  towns  have  "from 
ancient  times"  municipalized  the  catching  of  a  variety  of  shad. 
Cities  may  buy  and  keep  hay  scales.  This  privilege  is  ac- 
corded municipalities  by  general  law  in  a  number  of  states. 
Also  the  right  to  establish  standard  weights  and  measures. 
By  the  Vermont  statutes  of  1896,  any  city  or  incorporated 
town  can  vote  money  for  free  musical  entertainments,  and  in 
"New  Hampshire  any  city  or  town  may  provide  coasting  and 
skating  places.  Pretty  soon  we  may  have  general  laws  em- 
powering cities  and  towns  to  purchase  bicycle  pumps  and 
fasten  one  to  every  mail-box  post,  or  fix  them  at  other  con- 
venient intervals,  and  provide  free  lunches  for  bicycle  parties 
on  condition  that  the  women  do  not  wear  skirts  less  than  2-J 
feet  in  length ;  but  what  we  really  want  is  municipal  freedom 
in  the  full  sense,  by  constitutional  enactment  granting  the  in- 
itiative and  referendum,  and  not  statutes  granting  privileges 
in  comparatively  trivial  affairs. 

THE  AWKWARD  SQUAD  AND  THE  HONOR  LIST. 

Considering  the  whole  range  of  legislative  and  constitu- 
tional provisions  in  favor  of  municipal  liberty, 

DELAWARE  AND  MARYLAND 

Take  their  places  at  the  tail  of  the  class.  They  seem  strongly 
inclined  to  shirk  general  legislation  favorable  to  municipal 
rights.  They  are  almost  total  abstainers  from  the  performance 
of  their  duties  in  this  regard. 


HOME  EULE   FOE   OUE   CITIES.  465 

Virginia,  North  Carolina,  Alabama,  Arkansas  and  Nevada 
are  only  a  little  further  advanced,  and 

THE  NEW  ENGLAND  GROUP 

as  a  whole  has  not  very  much  to  be  proud  of.     Neither  has_ 
New  York,  and  Louisiana,  would  surely  have  a  place  at  the  end 
of  the  procession  were  it  not  for  the  law  of  1896  in  relation  to 
home  made  charters. 

Turning  to  the  head  of  the  column,  let  us  note  the  states 
in  the  front  ranks  of  progress  toward  municipal  liberty.  Con- 
sidering the  volume  and  value  and  the  universality  of  the 
rights  accorded  to  municipalities,  and  taking  into  account  the 
attitude  of  the  courts  on  common  law  principles,  the  use  of 
constitutional  safeguards,  and  the  initiative  and  referendum, 
we  may  perhaps  be  justified  in  placing  on  the  roll  of  honor  the 
names  of  the  following  states: 

MINNESOTA,  CALIFORNIA,  WASHINGTON,  MISSOURI, 

SOUTH     CAROLINA,    KENTUCKY,    WISCONSIN,    MICHIGAN, 

INDIANA,  IOWA,  KANSAS,  NEBRASKA,  COLORADO  AND  UTAH. 

But  even  in  the  best  states  the  law  is  very  imperfect.    Frag- 
mentary legislation,  unconscionable  repetition  and  miserable 
indexing  characterize  the  bulk  of  our  statutes,  and  make  the 
study  of  statute  law  a  soul-exasperating  business.     Massive 
enactments  loaded  with  ponderous    verbosity    and    repeated 
almost  or  quite  verbatim  at  intervals  thru  the  statutes  under 
each  division  of  municipalities  and  perhaps  various  other  heads, 
together   with  shreds  of  legislation  touching  the  same  topics, 
scattered  thru  thousands  of  pages,  tied  up  with  other  bundles 
with  which  they  may  be  related  in  some  way,  nestling  in  some 
proviso,  or  paragraph,  or  section  of  a  big  chapter  whose  head- 
ing may  not  lead  you  to  examine  it  for  the  subject  you  have 
in  hand  and  whose  molecular  constitution  is  not  correctly  and 
completely  registered  in  the  index — these  things  and  ambigu- 
ous wordings,  conflicting  decisions  and  multitudinous  diver- 
gences in  the  laws  and  customs  and  charters   of  the  various 
states  make  it  almost  impossible  to  ascertain  what  the  law  is. 
And  then  the  terrible  waste  of  time  and  space  and  printer's 
ink.    Rhode  Island  is  not  very  large,  but  her  legislative  acts, 

30 


466  THE    BONDAGE    OF    CITIES 

resolutions  and  reports  come  out  each  year  in  a  volume  as  big 
as  a  young  dictionary.  The  Massachusetts  Public  Statutes, 
compiled  in  1882  make  a  big-paged  book  of  1,400  pages;  the 
supplement  to  these  Public  Statutes  for  1882  to  1888  is  a 
volume  of  1,500  pages;  the  supplement  for  1889  to  1895  is 
an  enormous  volume  of  1,700  pages; — three  big  volumes  with 
4,600  oceanic  pages.  In  addition  to  all  this  the  legisla- 
ture is  manufacturing  a  fat  blue  book  every  year — and 
every  one  is  conclusively  presumed  to  know  the  law.  The 
contrast  between  the  efficiency  of  our  watch  factories,  water 
works,  fire  departments,  post  office  and  navy,  and  the  ineffici- 
ency of  our  legislative  factories  is  awful.  We  have  already 
spoken  (p.  402)  of  New  Jersey's  delicate  creations  in  the  statute 
line,  occupying  over  4,000  pages  and  five  million  words.  The 
city  acts  alone  fill  360  big  pages  with  the  customany  repeti- 
tions as  to  elections,  corporate  powers,  duties  of  officers,  etc. 
Besides  all  this,  there  are  40  big  pages  on  towns,  and  then  we 
have  30  blanket  pages  on  oysters  and  clams,-  which  are  not 
more  indigestible  than  these  statutes,  altho  the  legislature  does 
not  put  that  conclusion  in  the  book. 

One  is  tempted  to  say:  "Throw  the  statutes  away  and  begin 
all  over  and  make  the  law  simple  and  concise  so  that  any  one 
can  find  it  and  understand  it  when  he  finds  it."  For  all  local 
services  and  franchises  involving  the  use  of  streets,  let  us  have 
one  little  paragraph  according  full  powers  of  construction, 
purchase,  maintenance  and  operation  of  works  and  systems,  to 
supply  the  municipality  (city,  town  or  village)  and  its  inhabi- 
tants with  water,  gas,  electric  or  other  light,  heat,  power,  street 
railways  or  other  transit  facilities,  telegraph,  telephone,  tele- 
lectroscope  or  any  other  local  service  requiring  a  special  use 
of  the  streets  or  rights  of  way,  and  conferring  exclusive  powers 
of  grant  and  control  upon  municipalities  in  respect  to  such 
franchises  and  services.  A  few  such  clauses  carefully  worded 
would  cover  the  whole  field  of  distinctively  municipal  busi- 
ness, including  markets,  ferries,  wharves,  harbors,  parks, 
baths,  lodging  houses,  etc.  Add  a  clause  conferring  the  right 
to  do  anything  not  forbidden  by  valid  law  of  state  or  nation. 
Put  all  these  clauses  in  one  small  section  of  the  constitution, 


TO    POLITICIANS    AND    MONOPOLISTS    MUST    CEASE.  467 

with  another  section  providing  for  the  initiative  and  refer- 
endum and  recall,  another  for  the  merit  system  of  civil  service, 
and  another  for  proportional  representation — including  the 
women — then  give  municipalities,  subject  to  these  provisions, 
the  right  to  make  their  own  charters  (on  legislative  approval 
as  to  portions  that  go  beyond  the  said  provisions),  and  yoiL 
have  municipal  liberty  and  a  simplified  law,  so  far  as  it  is  pos- 
sible to  get  them  in  a  state  which  by  necessity  places  the  final 
appeal  upon  the  law's  interpretation  in  a  supreme  court,  a  - 
condition  which  might  at  times  weaken,  but  on  the  whole 
would  be  far  more  apt  to  strengthen  the  proposed  constitu- 
tional guaranties.  If,  after  our  states  have  done  some  think- 
ing on  these  lines,  they  will  join  in  a  great  convention  that 
may  lead  to  the  adoption  of  simple  uniform  provisions  on  these 
and  other  fundamental  questions,  the  future  will  be  filled  with 
the  hope  that  legislation  may  some  day  become  a  science. 

CONCLUSIONS. 

In  going  over  the  laws  and  constitutions  of  these  forty-five 
states  from  early  times  to  the  present  year,  a  few  conclusions 
of  special  breadth  and  moment  have  forced  themselves  upon 
my  attention : 

First:  There  is  a  powerful  trend  toward  careful  definition, 
regulation  and  limitation  of  legislative  power. 

Second:  There  has  been  in  recent  years  a  tremendous  and 
ever  accelerating  movement  toward  legislation  favorable  to 
public  ownership  and  operation  of  local  utilities,  particularly 
those  that  involve  any  special  or  privileged  use  of  the  streets. 

Third:  There  has  been  an  equally  emphatic  movement 
toward  a  fuller  recognition  of  the  principle  of  local  consent, 
and  the  right  of  the  people  to  be  consulted  about  important 
measures  and  vote  directly  upon  them,  and  the  correlative 
right  to  initiate  legislation  if  they  so  desire. 

Fourth:  The  local  right  to  grant  local  franchises,  elect  local 
officers  and  manage  local  property,  and  the  right  of  munici- 
palities to  frame  their  own  charters  have  also  received  recogni- 
tion. 

Such  are  some  of  the  principal  streams  that  make  up  the 


468  THE  CITY  FOR  THE  PEOPLE. 

current  of  enactment  that  is  moving  toward  municipal  liberty 
and  independence  in  respect  to  local  affairs.  And  yet  it  must 
be  admitted  that  no  real  home  rule  has  been  established  be- 
yond the  reach  of  legislative  interference  unless  the  Califor- 
nia amendment  of  1896  has  that  effect.1  Legislatures  still 
have  power  to  alter  or  abolish  charters,  and  may  practically 
annul  even  freehold  charters,  for,  except  in  California,  they 
are  clearly  and  expressly  subject,  by  constitutional  proviso, 
to  the  general  laws  of  the  state,  even  in  respect  to  purely  mu- 
nicipal affairs.  We  have  as  yet  no  setting  apart  of  a  definite 
local  field  from  which  state  legislation  shall  be  excluded,  as 
national  legislation  is  excluded  from  state  interests.  Some  of 
our  states  have  made  a  splendid  beginning,  but  the  end  is  not 
yet. 


1  Possibly  Missouri  should  also  be  excepted,  for  the  rule  of  127  Mo.  642  may 
stand  by  its  inherent  justice  or  the  weight  of  precedent,  in  spite  of  the  fact 
that  the  reasoning  on  which  the  court  based  the  decision,  is  open  to  serious 
.question.    (See  p.  424). 


CHE  first  form  of  government  in  this  country  was  colonial.    After  the 
revolutionary  war,  state  governments  naturally  succeeded  the  colonial 
governments.    Then  only  about  3  persons  in  100  lived  in  cities  of 
over  8000  inhabitants,  while  now  about  35  persons  in  100  live  in  cities  of  over 
8000.    Then  there  were  no  cities  of  great  size,  and  they  were  not  compact 
as  our  cities,  of  necessity,  now  are.    Lighting  was  simple  and  primitive; 
each  household  had  its  one  or  several  "tallow  dips'"  and  there  was  no 
public  lighting  to  speak  of.    Lanterns,  rather  than  street  lights,  were  de- 
pended upon  to  guide  footsteps  in  dark  streets.    This  was  the  entire  situ- 
ation concerning  lighting,  both  domestic  and  public.    As  gas  was  not  known 
there  could  be  no  municipal  gas  question.    As  to  water,  there  was  a  well  in 
nearly  every  back  yard ;  and  if  not,  the  corner  pump  was  near  by  ;  and  the 
wells  in  so  sparse  a  population  were  not  unhygienic.    This  was  the  entire 
water  question  of  that  time.    As  the  people  in  the  cities  of  that  time  could 
easily  walk  from  home  to  business,  and  even  walk  home  for  mid-day  dinner 
and  back  to  business  again  in  the  afternoon,  there  was  no  local  transporta- 
tion question  as  we  have  it  now.    Hence,  with  a  population  so  largely  rural, 
and  with  our  present  municipal  necessities  unfelt  and  unknown,  a  state 
government  fulfilled  every  need.    But  now  with  our  population  so  largely 
urban,  and  our  cities  grown  to  such  gigantic  size,  new  necessities  have 
rapidly  come  into  being.    Now  we  are  toucht  a  dozen  or  a  score  of  times  by 
our  city  government  to  once  by  our  state  government ;  for  example,  the  con- 
dition of  the  water  we  drink,  the  condition  of  the  streets,  the  cost  and  quality 
of  gas,  which  is  now  a  necessity,  the  public  order  and  our  private  safety,  etc.. 
etc.,  etc.,  depend  upon  our  city  government.     This  then    has   become  of 
direct  and  constant  importance  to  us.    A  century  ago  state  government  was 
much  more  important  than  municipal  government,  now  the  importance  of 
municipal  government  is  by  far  the  greatest.    As  those  who  planned  our 
state  governments  in  the  18th  century  could  not  foresee  the  needs  that  would 
arise  in  the  19th  century,  they  could  not  be  expected  to  provide  for  them. 
We  who  now  see  and  feel  these  new  needs,  should  be  zealous  in  our  endeavors 
until  our  cities  are  made  completely  free  from  the  interference  of  state  legis- 
latures in  local  matters  (freedom  not  needed  then  but  sorely  needed  now), 
and  until  the  people  of  our  cities  are  also  made  completely  free  from  the 
domination  of  councils  and  politicians,  by  the  introduction  of  the  initiative 
and  referendum. 


'^7 


THE  TRUE  CITY 

IS  THE  CITY  WHERE  JUSTICE  AND  MANHOOD 

ARE  MORE  REGARDED  THAN  MONEY— 

THE  CITY  WHERE  POWER  AND  PROSPERITY  ARE  FOR 

THE  WHOLE  PEOPLE 

AND  NOT 

FOR  THE  PRIVATE  POSSESSION 

OF  A  FEW  POLITICANS  AND  MONOPOLISTS. 


Appendix  I. 

LEGISLATIVE   FORMS. 

Forms  of   Constitutional   and   Statute  Provisions  Relating 
to   Municipal   Liberty   and   Freehold    Charters. 

Part  I.     Suggested  Forms. 

Form  A  offers  a  method  of  securing  constitutional  amendments, 
which  gives  the  people  a  more  effective  control  of  the  state  constitu- 
tion, and  opens  a  way  to  municipal  liberty  (or  other  desired  reform) 
that  is  direct  and  easily  available,  and  is  of  inestimable  value  when 
the  old  road  through  the  Legislature  is  obstructed  or  blocked. 

iM)rm  B  offers  a  similar  method  of  amending  the  charter  of  a  city, 
or  municipal  constitution,  within  stated  limits. 

Form  <J  gives  cities  and  towns  the  right  to  make  their  own 
charters  entire,  subject  to  the  state  constitution,  and  to  general  laws 
relating  to  state  interests,— home-made  charters  and  municipal 
sovereignty. 

Form  D  provides  for  municipal  sovereignty  in  a  specified  sphere 
without  the  freehold  charter  provisions. 


Sovereignty  of  the  People,  rendered  more  Real  and  Effective, 

A  direct  and  simple  method,  nf  amending  state  constitutions,  which,  added  to 
the  •methods  already  in  use,  will  give  the  people  more  perfect  control  over  their 
constitutions  and  governments,  and  enable  them  to  secure  control  of  franchises, 
municipal  freedom,  direct  legislation,  or  other  advance  as  soon  as  they  desire 
it  and  in  spite  of  the  opposition  of  political  rings  or  future  legislative  cliques. 

AMENDMENT   TO   STATE   CONSTITUTION. 

Providing  an  additional  means  of  making  constitutional  amendments. 

(Insert  preliminary  matter  appropriate  in  the  particular  state  to  legislative 
resolutions  proposing  constitutional  amendments.] 

ARTICLE  OF  AMENDMENT. 

Our  petition  of ]  votes,  filed  w'th  the  Secretary 

of  Slate,  asking  that  a  specified  amendment  to  the  constitution 
be  submitted  to  the  people,  the  said  amendment  shall  be  so  sub- 
mitted at  the  next  election  (occurring  one  month  or  more  after 
the  filing  of  said  petition),  and  if  approved  by  a  majority  of 
the  legal  electors  voting  upon  it,  such  amendment  shall  become 
a  part  of  the  constitution  of  the  state. 

1  The  number  of  voters  required  on  the  petition  may  be  fixed  at  3000,5000  or 
10,000,  according  to  the  size  of  the  state,  or  may  be  a  percen  age,  as  1, 2, 8  or  5  per 
cent.,  or  both  element-  may  be  used  to  make  a  compound  test— 5090  legal  voters 
or  a  number  equal  to  5  per  cent,  of  the  total  vote,  at  the  last  preceding  election  in 
laid  state,  is  a  good  form  for  states  of  medium  size. 

I 


II  APPENDIX   I. 

■ 

B 

Local  Self-government  rendered  more  Effective. 
A  direct  and  simple  method  of  amending  city  charters. 

STATUTE   OR   AMENDMENT. 

To  provide  for  the  amendment  of  city  charters  by  direct  action  of  the  people* 

On  petition  of ?  voters  of  any  municipality, 

filed  with  the  executive  or  clerk  of  such  municipality,  asking 
the  adoption  of  a  specified  charter  amendment  providing  for 

?  the  said  amendment  shall  be  submitted  to  the 

voters  at  the  next  municipal  election  {occurring  30  days  or 
more  after  said  petition  is  filed),  and,  if  approved  by  a  majority 
of  the  legal  electors  of  the  municipality  voting  upon  it,  such 
amendment  shall  become  a  part  of  the  charter  or  organic  law 
governing  the  municipality. 

a  See  note  1.  Cities  being  usually  of  less  population  than  states,  the  per- 
centage may  be  higher  but  the  stated  number  should  be  lower.  For  example,  in 
a  city  of  25,000  people  with  perhaps  5000  voters,  10  per  cent,  or  500  signatures  might 
be  required.  In  a  city  of  a  million,  however,  with  200,000  voters  or  more,  even 
5  per  cent,  would  be  high.  The  tendency  in  this  country  so  far  has  been  to  place 
the  percentage  higher  than  is  best,  but  it  is  wise  to  obtain  such  legislation  even 
if  the  percentage  has  to  be  put  high  to  do  it,  for  after  the  law  is  passed  the  way  is 
open  to  the  people  to  reduce  the  percentage  at  any  time  they  see  fit.  Some  con- 
servative authorities  consider  8000  signatures  a  sufficient  requirement  for 
Philadelphia,  a  city  of  1,200,000  inhabitants,  and  over  230,000  voters. 

3  The  field  within  which  such  direct  amendment  of  the  charter  is  to  be 
authorized  may  be  limited  to  a  specific  subject  such  as  the  local  use  of  direct 
legislation,  proportional  representation,  control  of  franchises,  voting  machinery, 
election  and  recall  of  local  officers,  etc.,  or  it  may  be  so  broad  us  to  include  all 
municipal  affairs.  We  give  two  examples  of  bills  of  this  sort  with  the  blanks 
filled  in. 

Bi     AN  ACT 

To  establish  Local  Option  in  the  use  of  the  Initiative  and  Referendum. 

Be  it  enacted,  etc.,  as  follows: 

On  petition  of  3000  legal  voters  of  any  municipality  (or  of  a  number  equal 
to  5  per  cent,  of  the  total  vote  cast  at  the  last  municipal  election  in  such 
municipality)  asking  the  adoption  of  a  specified  charter  amendment  providing  for 
the  initiative  and  referendum  on  municipal  ordinances ,  contracts^franchises,  etc., 
the  said  amendment  shall  be  submitted  to  the  voters  at  the  next  municipal  election 
(occurring  30  days  or  more  after  said  petition  is  filed),  and  if  approved  by  a 
majority  of  the  legal  electors  of  the  municipality  voting  upon  it,  such  amend- 
ment shall  become  a  part  of  the  charter  or  organic  law  governing  the 
municipality. 

(The  same  provision  may  be  made  a  constitutional  amendment.) 


SUGGESTED  LEGISLATIVE  FORMS.  Ill 

B2     CONSTITUTIONAL    AMENDMENT 

To  provide  for  direct  amendment  of  city   charters  in   respect  to  local  affairs. 

On  petition  of  3000  legal  voters  of  any  municipality  (or  of  a  number  equal 
to  5  per  cent,  of  the  total  vote  cast  at  the  last  preceding  municipal  election  in 
such  municipality)  asking  the  adoption  of  a  specified  charter  amendment  provid- 
ing for  any  matter  within  the  realm  of  local  affairs  or  municipal  business  as 
distinguished  from  state  interests,  the  said  amendment  shall  be  submitted  to  the 
voters  at  the  next  municipal  election  (occurring  30  days  or  more  after  said 
petition  is  filed),  and  if  approved  by  a  majority  of  the  legal  electors  of  the 
municipality  voting  upon  it,  such  amendment  shall  become  a  part  of  the  charter 
or  organic  law  governing  the  municipality. 


c 

CONSTITUTIONAL   AMENDMENT. 

To  enable  cities  and  towns  to  make  their  own  charters, 
MUNICIPAL  HOME-RULE. 

1.  Any  city  or  town  may  frame  a  charter  for  itself. 
On  motion  of  the  local  legislative  authorities  or  peti- 
tion of  3000  of  the  legal  voters  (or  a  number  equal  to 
5  per  cent,  of  the  total  vote  cast  at  the  last  preceding 
election  in  said  city  or  town)  to  the  Executive,  15 
freeholders  shall  be  elected  to  draw  up  a  charter  to  be 
submitted  to  the  people  at  the  next  election.  Such 
charter  shall  be  publisht  thoroly  to  the  citizens  at 
least  one  month  before  said  election,  and,  if  adopted 
at  the  polls,  shall  become  the  organic  law  of  the 
municipality  subject  to  the  constitution  and  laws  of 
the  State  under  the  limitations  hereinafter  stated. 

2.  Such  charter  may  be  amended  by  referendum 
vote  on  the  initiative  of  the  mayor,  or  councils,  or 
petition  of  3000  of  the  legal  voters  (or  a  number 
equal  to  5  per  cent,  of  the  legal  voters  in  said  city  or 
town)  to  the  Executive. 

3.  Local  franchises  and  municipal  services  such  as 
private  corporations  may  engage  in,  and  all  affairs  of 
of  a  purely  local  business  nature,  shall  be  given  over 
to  MUNICIPAL  SOVEREIGNTY  free  of  legislative 
interference.      In  their   relation  to  State  interests 


IV  APPENDIX  I. 

municipalities  shall  remain  fully  under  the  control  of 
the  legislature  acting  through  general  laws,  or 
through  such  special  laws  as  may  be  asked  for,  or 
adopted,  by  referendum  vote  in  the  municipalities 
affected. 

Under  such  a  charter  law,  the  city  will  be  completely  free  to  act 
in  respect  to  interests  that  are  distinctly  local,  and  in  respect  to  state 
interests,  as  order,  education,  health,  etc.,  it  will  be  free  to  act  its  will 
so  long  as  it  does  not  run  counter  to  state  or  national  law.  It  must 
provide  the  education,  sanitation,  etc.,  required  by  state  law,  but  it  may 
provide  more  than  the  state  law  requires, — it  may  go  beyond  state 
requirements  except  where  excess  is  prohibited  for  the  sake  of  uni- 
formity, etc.  The  amendment  gives  municipal  sovereignty  in  local 
affairs,  and  in  other  affairs  it  gives  municipal  initiative  and  freedom 
subject  only  to  the  constitution  and  general  laws. 

If  it  should  seem  possible  to  secure  the  freehold  charter  pro- 
visions but  not  possible  to  pass  the  municipal  sovereignty  clause,  §  3 
and  the  last  five  words  of  §  1  may  be  omitted  from  the  bill. 

If  the  legislature  is  not  willing  to  adopt  a  resolution  proposing  an 
amendment  that  will  give  full  liberty  in  the  making  of  home-rule 
charters,  it  may  be  willing  to  sanction  a  freehold  charter  amendment 
joined  with  a  stipulation  that  the  charter  must  be  approved  by  the 
legislature  before  going  into  effect,  or  linked  with  a  few  broad  limita- 
tions and  definite  specifications  as  to  form  of  organization,  etc.  In 
such  case  the  framers  of  the  amendment  may  be  aided  by  the  following 
suggestions  concerning 


ADDITIONAL   PROVISIONS. 

That  may  be  advisable  in  connection  with  freehold  charter   amendments. 

Every  city  shall  elect  a  Mayor  or  chief  executive  and  a 
Council  of  one  or  two  chambers,  in  such  manner  as  may  be 
prescribed  by  law,  and  at  a  time  separated  by  at  least  one 
month  from  Stale  and  National  elections. 

It  shall  keep  accounts  in  accordance  with  forms  and  methods 
prescribed  by  the  State. 

It  shall  establish  and  maintain  such  system  of  police,  courts, 
prisons,  schools,  sanitation  and  care  of  the  poor,  as  may  be 
required  by  State  law. 

It  shall  adopt  a  system  of  civil  service  regulations  whereby, 
so  far  as  practicable,  (1)  all  appointments  and  promotions  in- 
cluding laborers  shall  be  made  according  to  fitness  and  merit, 
and  (£)  removal  or  degradation  shall  be  only  for  cause  and 
subject  to  appeal  to  an  impartial  tribunal. 

It  may  adopt  any  system  of  direct  legislation,  proportional 
representation ,  direct  nomination,  or  automatic  voting  it  may 
deem  advisable. 


SUGGESTED  LEGISLATIVE  FORMS.  V 

It  may  purchase  or  construct  property  for  any  lawful  pur- 
pose, or  take  by  ivill  or  gift,  and  may  hold,  use,  lease,  mortgage 
or  sell  such  property  and  deal  with  it  in  every  way  like  an 
individual  owner,  except  that  no  public  utility  plaid  or  franchise 
shall  be  sold,  leased  or  encumbered  without  a  referendum  vote 
to  that  effect. 

The  Legislature  shall  enact  a  brief  and  comprehensive 
Municipal  Act  to  carry  out  these  provisions  and  establish  such 
other  general  safeguards  as  State  interests  may  require* 

*  It  is  usual  In  our  State  laws  to  specify  a  municipal  debt  limit,  but  such 
limitations  are  frequently  productive  of  the  most  serious  i  convenience  and 
delay  of  improvomen.s,  and  it  is  difficult  to  imagine  why  a  city  should  be  tied 
up  ith  a  debt  limit  of  5  or  10  p?r  cent,  any  more  than  a  state  or  na  ion  shou  d  be 
so  fettered,  or  why  a  state  should  limit  a  city  in  this  way  any  more  than  the 
•nation  should  limit  a  state. 


D 

MUNICIPAL   SOVEREIGNTY. 

And  freedom  from  legislative  interference. 

Municipal  sovereignty  in  respect  to  local  affairs  may  be  secured 
without  the  freehold  charter  provisions  by  embodying  section  3  of  the 
preceding  form  in  a  constitutional  amendment  by  itself.  A  smaller 
but  still  very  important  degree  of  municipal  self-government  or  free- 
dom from  legislative  interference  is  secured  by  an  amendment  placing 
the  control  of  local  franchises  in  the  municipality,  or  providing  for 
local  assent  to  special  legislation,  or  both.     For  example: 

FRANCHISES  1. 

Local  franchises  shall  be  deemed  within  the  sphere  of  local 
sovereignty  free  of  legislative  interference,  and  the  municipality 
may,  under  check  of  the  referendum,  deal  with  them  as  it  sees 
fit.  All  grants,  extensions  and  renewals  of  such  franchises 
shall  be  made  by  the  municipality,  under  such  check,  and  shall 
be  subject  to  regulation  and  control  by  the  municipality. 

STREET  FRANCHISES  2. 

Each  city  and  town  shall  have  full  control  of  its  streets,  and 
all  grants,  extensions  or  renewals  of  water,  gas,  electric,  railway, 
telegraph,  telephone,  or  other  important  franchises  and  privileges 
therein  shall  be  on  such  terms  as  the  local  authorities  may 
prescribe,  subject  to  the  referendum  at  the  option  of  the  executive, 
or  Yb  of  either  council,  or  upon  petition  of  5  per  cent,  of  the 
voters. 


VI  APPENDIX   I. 

STREET  FRANCHISES  3. 

Street  franchises  and  local  public  works  of  a  business 
nature  such  as  water  and  lighting  plaids,  street  railways  and 
telephone  exchanges,  shall  be  matters  of  sole  municipal  sov- 
ereignty beyond  the  interference  or  control  of  the  Legislature,  and 
subject  only  to  this  constitution  :  Provided,  that  all  ordinances 
or  acts  granting,  extending,  or  renewing  such  franchises  or 
providing  for  the  constructor,  purchase,  sale  or  lease  of  such 
works,  shall  be  subject  to  the  referendum  upon  petition  of  5  per 
cent,  of  the  voters  of  the  municipality  filed  in  the  executive  office 
within  30  days  after  passage  and  publication  of  said  act  or 
ordinance. 

SPECIAL  LEGISLATION. 

Special  legislation  affecting  municipalities  shall  be  invalid, 
except  so  far  as  asked  for  or  adopted  by  the  municipality  affected. 
For  the  purposes  of  this  provision,  cities  and  towns  are  divided 
into  three  classes;  1st,  those  below  8,000 population;  2d,  those 
between  8,000  and  100,000,  and  3d,  those  above  100,000. 

Sometimes  one  of  these  single-minded  provisions  can  be  passed 
where  nothing  can  be  done  with  the  broader  measures.  Work  to  get 
whatever  can  be  obtained  now,  even  if  it  be  only  a  clause  against  special 
legislation.  Every  step  in  the  right  direction  makes  future  progress 
easier.  Even  a  statute  embodying  the  substance  of  one  of  these  pro- 
visions is  worth  a  great  deal  to  the  cause  of  municipal  liberty.  But  an 
amendment  is  better  and  the  full  constitutional  amendment  of  the  last 
section  (C)  is  the  thing  to  get  if  possible.  Perhaps  the  best  plan  of  all 
is  to  get  both  the  statute  and  the  amendment — get  the  statute  for  im- 
mediate use,  and  at  the  same  time  take  the  first  steps  toward  getting  a 
constitutional  amendment. 


Part   II. 
Existing    Freehold  Charter   Amendments,    Etc. 


The    subjoined    constitutional    a- 
mendments   giving   cities    the   right 
to  make  their  own  charters    to    be 
adopted  and  amended    by    popular 
vote,  are  very  important  to  all  who 
are  interested  in  the  cause  of  mu- 
nicipal   liberty.      The    Washington 
amendment  is  commendable  for  its 
brevity  and  its  provision  for  adopt- 
ing and  amending  charters  by  ma- 
jority vote;   the    requirement    of    a 
four-sevenths  vote  for    adoption    in 
Minnesota  and  Missouri  (except  St. 
Louis),  and  three-fifths  for  amend- 
ment in   Minnesota,    Missouri    and 
California,  is  unnecessarily    burden- 
some.    If  a  majority  vote  is  suffic- 
ient to  amend  the  constitution  of  a 
State,  it  surely  should  be  sufficient 
to  amend  the  charter  of  a  city.*    It 
may  be  well  to  require  a  three-fifths 
or    three-fourths    or    four-sevenths 
vote  for  sudden  action,  or  for  legisla- 
tive action  without  recourse  to  the 
people,    but   to    demand   three-fifths 
or  more  when  the  people  are  voting 
after  due  notice  and  deliberation,  is 
simply   to    enable  a  small   minority 
to   govern  the  majority.     The  pro- 
visions in    California    and     Missouri 
(St.  Louis)  against  amendment  ex- 
cept at  intervals  of  two  years  is  also 
objectionable.     The  people   of  each 
city  should  determine  for  themselves 
how     often    they    will    allow    their 
charter  to  be  amended.     The  Min- 
nesota clause  commanding  the  board 
of  freeholders  to  submit  amendments 
on  petition  of  5    per    cent,    of    the 
voters  is  admirable.     By  statute  the 
board   of    freeholders    to    frame     a 
charter,  etc.,  is  to  be  appointed  by 
the  district  judge  on  petition  of  10 
per  cent,  of  the  voters  of  the  munici- 
pality.    Minnesota  also  leads  in  the 
universality   of   her  amendment,   no 
class  of  cities,  large  or  small,  being 
excluded   from   its   benefits.      If   we 
could  join  in  one  provision  the  good 
points  of  these  various  amendments, 
brevity,    majority    rule,    5    per     cent, 
initiative,  to  set  in  motion  the  ma- 

*  Since  this  criticism  was  first  published 
the  California  Legislature  has  proposed  a 
new  amendment  changing  the  three-fifths 
requirement  to  a  majority  vote. 


chinery  of  adoption  or  amendment, 
universal  application  to  all  municipali- 
ties, and  then  add  a  clause  excluding 
legislative  interference  in  any  way  with  - 
local  self-government  in  respect  to 
specified  local  affairs,  including  street 
franchises  and  other  local  business 
matters,  then  we  should  have  an 
amendment  that  would  secure  real 
municipal  liberty.  The  people  of  a 
city  could  adopt  direct  legislation  in 
respect  to  ordinances,  and  popular 
sovereignty  in  local  government 
would  be  assured.  We  have  tried 
to  suggest  in  Part  I.  an  amend- 
ment embodying  these  good  points. 
Here  are  the  amendments  so  far 
passed: 

The  Washington  Charter  Amendment. 

The  Washington  Constitution, 
1889,  Article  XI,  Section  10,  pro- 
vides as  follows: 

Corporations  for  municipal  purposes 
shall  not  be  created  by  special  laws, 
but  the  legislature,  by  general  laws, 
shall  provide  for  the  incorporation,  or- 
ganization, and  classification,  in  propor- 
tion to  population,  of  cities  and  towns, 
which  laws  may  be  altered,  amended, 
or  repealed.  Cities  and  towns  hereto- 
fore organized  or  incorporated  may  be- 
come organized  under  such  general  laws 
whenever  a  majority  of  the  electors 
voting  at  a  general  election  shall  so 
determine,  and  shall  organize  in  con- 
formity therewith;  and  cities  and  towns 
heretofore  or  hereafter  organized  and 
all  charters  thereof  framed  or  adopted 
by  authority  of  this  constitution  shall 
be  subject  to  and  controlled  by  gen- 
eral laws.  Any  city  containing  a  popu- 
lation of  twenty  thousand  inhabitants 
or  more  shall  be  permitted  to  frame  a 
charter  for  its  own  government  consis- 
tent with  and  subject  to  the  constitu- 
tion and  laws  of  this  state  and  for 
such  purpose  the  legislative  authority 
of  such  city  may  cause  an  election  to 
be  had,  at  which  election  there  shall 
be  chosen  by  the  qualified  electors  of 
said  city  fifteen  freeholders  thereof, 
who  shall  have  been  residents  of  said 
city  for  a  period  of  at  least  two  years 
preceding  their  election,  and  qualified 
electors,  whose  duty  it  shall  be  to  con- 
vene within  ten  days  after  their  elec- 
tion, and  prepare  and  propose  a  char- 
ter for  such  city.  Such  proposed  char- 
ter shall  be  submitted  to  the  qualified 
electors  of  said  city,  and  if  a  majority 
of  such  qualified  electors  voting  thereon 
ratify  the  same,  it  shall  become  the 
charter  of  said  city,  and  shall  become 
the  organic  law  thereof,  and  supersede 
any  existing  charter,   including  amend- 


VII 


VIII 


A  IT  KM  MX    I. 


ments  thereto,  and  all  special  laws  In- 
consistent with  such  charter.  Said  pro- 
posed charter  shall  be  published  in  two 
daily  newspapers  published  in  said  city 
for  at  least  thirty  days  prior  to  the 
day  of  submitting  the  same  to  the  (lec- 
tors for  their  approval,  as  above  pro- 
vided. All  elections  in  this  section  au- 
thorized shall  only  be  had  upon  notice. 
which  notice  shall  specify  the  object  of 
calling  such  election,  and  shall  be  giv- 
en for  at  least  ten  days  before  the  day 
of  election  in  all  election  districts  of 
said  city.  Such  elections  may  be  gen- 
eral or  special  elections,  and,  except  as 
herein  provided,  shall  be  governed  by 
the  law  regulating  and  controlling  gen- 
eral or  special  elections  in  said  city. 
Such  charter  may  be  amended  by  pro- 
posals therefor  submitted  by  the  legis- 
lative authority  of  such  city  to  the  elec- 
tors thereof  at  any  general  election, 
after  notice  of  said  submission  published 
as  above  specified,  and  ratified  by  a  ma- 
jority of  the  qualified  electors  voting 
thereon.  In  submitting  any  such  char- 
ter or  amendment  thereto,  any  altern- 
ate article  or  proposition  may'  be  pre- 
sented for  the  choice  of  the  voters,  and 
may  be  voted  on  separately  without 
prejudice  to  others. 

The  Minnesota  Charter  Amendment. 

In  Minnesota  a  freehold  charter 
amendment  was  adopted  in  1896.  In 
1897  an  amendment  to  the  amend- 
ment was  proposed  by  act  of  the 
legislature  and  it  was  adopted  by  a 
vote  of  more  than  2  to  1  in  1898. 
In  1899  the  legislature  passed  an 
act  (Chap.  351)  to  carry  out  this 
amendment  and  define  the  method 
of  procedure  under  it.  The  amend- 
ment in  its  final  form  reads  as  fol- 
lows, and  is  part  of  Art.  4.  of  the 
State  Constitution: 

City  or  Village  may  Frame  its  own 
Charter. 
Section  36.  Any  city  or  village  in 
this  state  may  frame  a  charter  for  its 
own  government  as  a  city  consistent 
with  and  subject  to  the  laws  of  this 
state,  as  follows:  The  legislature  shall 
provide,  under  such  restrictions  as  it 
deems  proper,  for  a  board  of  fifteen 
freeholders,  who  shall  be  and  for  the 
past  five  years  shall  have  been  quali- 
fied voters  thereof,  to  be  appointed  bv 
the  district  judge  of  the  judicial  dis- 
trict in  which  the  city  or  village  is 
situated,  as  the  legislature  may  deter- 
mine, for  a  term  in  no  event  to  exceed 
six  years,  which  board  shall,  within  six 
months  after  its  appointment,  return  to 
the  chief  magistrate  of  said  city  or 
village  a  draft  of  said  charter,  signed 
by  the  members  of  said  board,  or  a 
majority  thereof. 

Charter  to  be  submitted  to  Voters. 
Such  charter  shall  be  submitted  to 
the  qualified  voters  of  such  city  or  vil- 
large  at  the  next  election  thereaf  ter,  and 
if  four-sevenths  of  the  qualified  voters 
voting  at  such  election  shall  ratify  the 
same,  it  shall,  at  the  end  of  30  days 
thereafter,   become  the   charter  of  such 


city  or  village  as  a  city,  and  super- 
sede any  existing  charter  and  amend- 
ments thereof:  Provided,  That  in  cities 
having  patrol  limits  now  established, 
such  charter  shall  require  a  %  majority 
vote  of  the  qualified  voters  voting  at 
such  election  to  change  the  patrol  limits 
now  established. 

Legislature  to  Prescribe  General  Limits  of 
Charter. 
Before  any  city  shall  incorporate  un- 
der this  act  the  legislature  shall  pre- 
scribe by  law  the  general  limits  within 
which  such  charter  shall  be  framed. 
Duplicate  certificates  shall  be  made  set- 
ting forth  the  charter  proposed  and  its 
ratification,  which  shall  be  signed  by 
the  chief  magistrate  of  said  city  or  vil- 
lage and  authenticated  by  its  corporate 
seal.  One  of  said  certificates  shall  be 
deposited  in  the  office  of  Secretary  of 
state,  and  the  other,  after  being  re- 
corded in  the  office  of  the  register  of 
deeds  for  the  county  in  which  such  city 
or  village  lies,  shall  be  deposited  among 
the  archives  of  such  city  or  village, 
and  all  courts  shall  take  judicial  notice 
thereof..  Such  charter  so  deposited  may 
be  amended  by  proposal  therefor  made 
by  a  board  of  fifteen  commissioners 
aforesaid,  published  for  at  least  thirty 
days  in  three  newspapers  of  general 
circulation  in  such  city  or  village,  and 
accepted  by  three-fifths  of  the  qualified 
voters  of  such  city  or  vilage  voting  at 
the  next  election  and  not  otherwise; 
but  such  charter  shall  always  be  in  har- 
mony with  and  subject  to  the  consti- 
tution and  laws  of  the  State  of  Min- 
nesota. 

Amendments  to  be  Submitted  upon  Appli- 
cation of  5  per  cent,  of  Legal  Voters. 
The  legislature  may  prescribe  the  du- 
ties of  the  commission  relative  to  sub- 
mitting amendments  of  charter  to  the 
vote  of  the  people,  and  shall  provide 
that  upon  application  of  5  per  cent,  of 
the  legal  voters  of  any  such  city  or  vil- 
lage, by  written  petition,  such  commis- 
sion shall  submit  to  the  vote  of  the 
people  proposed  amendments  to  such 
charter  set  forth  in  said  petition.  The 
board  of  freeholders  above  provided  for 
shall  be  permanent,  and  all  the  vacan- 
eies  by  death,  disability  to  perform  du- 
ties, resignation  or  removal  from  the 
corporate  limits,  or  expiration  of  term 
of  office,  shall  be  filled  by  appointment 
in  the  same  manner  as  the  original 
board  was  created,  and  said  board  shall 
always  contain  its  full  complement  of 
members. 

Mayor  and  Legislative  Body. 
It  shall  be  a  feature  of  all  such  char- 
ters that  there  shall  be  provided,  among 
other  things,  for  a  mayor  or  chief  mag- 
istrate, and  a  legislative  body  of  either 
one  or  two  houses;  if  of  two  houses, 
at  least  one  of  them  shall  be  elected  by 
general  vote  of  the  electors. 

Articles  of  Amendment  may  be  Submitted 
Separately. 
In  submitting  any  such  charter  or 
amendment  thereto  to  the  qualified  vo- 
ters of  such  city  or  village,  any  altern- 
ate section  or  article  may  be  presented 
for  the  choice  of  the  voters  and  may 
be  voted  on  separately  without  preju- 
dice to  other  articles  or  sections  of  the 
charter  or  any  amendments  thereto. 


FREEHOLD  CHARTER   AMENDMENTS. 


IX 


General  Laws  for  Cities  by  Divisions  of 
Population. 
The  legislature  may  provide  general 
laws  relating  to  affairs  of  cities,  the  ap- 
plication of  which  may  be  limited  to 
cities  of  over  fifty  thousand  inhabitants, 
or  to  cities  of  fifty  and  not  less  than 
twenty  thousand  inhabitants,  or  to 
cities  of  twenty  and  not  less  than  ten 
thousand  inhabitants,  or  to  cities  of  ten 
thousand  inhabitants  or  less,  which 
shall  apply  equally  to  all  such  cities 
of  either  class,  and  which  shall  be  par- 
amount while  in  force  to  the  provisions 
relating  to  the  same  matter  included  in 
the  local  charter  herein  provided  for. 
But  no  local  charter,  provision  or  ordi- 
nance passed  thereunder  shall  supersede 
any  general  law  of  the  state  defining 
or  punishing  crimes  or  misdemeanors. 

Voted  upon  at  the  general  election 
held  November  8,  1898,  and  adopted  by 
a  vote  of  68,754  in  favor  of  said  amend- 
ment to  32,008  against  the  same. 

Proclamation  of  the  vote  issued  by  the 
Governor,  December  29,  1898. 

The  California  Charter  Amendment. 

Sections  6  to  8V2,  of  Art.  XI,  of  the 
California  Constitution,  as  amend- 
ed down  to  1900,  are  as  follows:  (See 
pp.  LIII  and  LIV,  Cal.  Statutes, 
1899,  and  the  new  amendment  to 
§  8  proposed  at  the  extra  session  oi 
1900.) 

Sec.  0.  Corporations  for  municipal 
purposes  shall  not  be  created  by  spec- 
ial laws;  but  the  Legislature,  by  genera] 
laws,  shall  provide  for  the  incorporation, 
organization,  and  classification,  in  pro- 
portion to  population,  of  cities  and 
towns,  which  laws  may  be  altered, 
amended,  or  repealed.  Cities  and  towns 
heretofore  organized  or  incorporated 
may  become  organized  under  such  gen- 
eral laws  whenever  a  majority  of  the 
electors  voting  at  a  general  election 
shall  so  determine,  and  shall  organize 
in  conformity  therewith:  and  cities  and 
towns  heretofore  or  hereafter  organized, 
and  all  charters  thereof  framed  or 
adopted  by  authority  of  this  constitu- 
tion, except  in  municipal  affairs,  shall 
be  subject  to  and  controlled  by  general 
laws.  (Amendment  adopted  November 
3,    1890.) 

Sec.  7.  City  and  county  governments 
may  be  merged  and  consolidated  Into 
one  municipal  government,  with  one  set 
of  officers,  and  may  be  incorporated  un- 
der general  laws  providing  for  the  in- 
corporation and  organization  of  corpora- 
tions for  municipal  purposes.  The  pro- 
visions of  this  constitution  applicable  to 
cities,  and  also  those  applicable  to  coun- 
ties, so  far  as  not  inconsistent  or  pro- 
hibited to  cities,  shall  be  aplicable  to 
such  consolidated  government.  (Amend- 
ment adopted  November  0,  1894.) 

Sec.  8.  Any  city  containing  a  popula- 
tion of  more  than  three  thousand  five 
hundred  inhabitants  may  frame  a  char- 
ter for  its  own  government,  consistent 
with  and  subject  to  the  Constitution 
and  laws  of  this  state,  by  causing  a 
board  of  fifteen  freeholders  who  shall 
have  been  for  at  least  five  years  quali- 


fied .'lectors  thereof,  to  be  elected  by  the 
qualified  voters  of  said  city,  at  any  gen- 
eral or  special  election,  whose  duty  it 
shall  be,  within  ninety  days  after  such 
election,  to  prepare  and  propose  a  char- 
ter for  such  city,  which  shall  be  signed 
in  duplicate  by  the  members  of  such 
board,  or  a  majority  of  them,  and  re- 
turned, one  copy  to  the  mayor  thereof, 
or  other  chief  executive  officer  of  such 
city,  and  the  other  to  the  recorder  of 
the  county.  Such  proposed  charter  <\\h\\ 
then  be  published  in  two  daily  news- 
papers of  general  circulation  in  such 
city  for  at  least  twenty  days,  and  the 
'first  publication  shall  be  made  within 
twenty  days  after  the  completion  of  the 
charter;  Provided,  That  in  cities  con- 
taining a  population  of  not  more  than 
ten  thousand  inhabitants  such  proposed 
charter  shall  be  published  in  one  such 
daily  newspaper;  and  within  not  less 
than  thirty  days  after  such  publication 
it  shall  be  submitted  to  the  qualified 
electors  of  said  city,  at  a  general  or 
special  election;  and  if  a  majoritv  of 
such  qualified  electors  voting  thereat 
shall  ratify  the  same,  it  shall  thereafter 
be  submitted  to  the  legislature  for  its 
approval  or  rejection  as  a  whole,  with- 
out power  of  alteration  or  amendment. 
Such  approval  may  be  made  by  concur- 
rent resolution,  and  if  approved  by  a 
majority  vote  of  the  members  elected 
to  each  house  it  shall  become  the  char- 
ter of  such  city,  or  if  such  city  be  con- 
solidated with  a  county,  then  of  such 
city  and  county,  and  shall  become  the 
organic  law  thereof  and  supersede  anv 
existing  charter,  and  all  amendments 
thereof  and  all  laws  inconsistent  with 
such  charter.  A  copy  of  such  charter, 
certified  by  the  mayor  or  chief  executive 
officer,  and  authenticated  by  the  seal  of 
such  city,  setting  forth  the  submission 
of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall,  after  the  ap- 
proval of  such  charter  by  the  legisla- 
ture, be  made  in  duplicate,  and  de- 
posited, one  in  the  office  of  the  secre- 
tary of  state,  and  the  other,  after  being 
recorded  in  said  recorder's  office,  shall 
be  deposited  in  the  archives  of  the  city; 
and  thereafter  all  courts  shall  take 
judicial  notice  of  said  charter.  The 
charter  so  ratified  may  be  amended,  at 
intervals  of  not  less  than  two  years,  by 
proposals  therefor,  submitted  by  the 
legislative  authority  of  the  city  to  the 
qualified  electors  thereof,  at  a  general 
or  special  election  held  at  least  forty 
days  after  the  publication  of  such  pro- 
posals for  twenty  days  in  a  daily  news- 
paper in  general  circulation  in  such  city, 
and  ratified  by  at  least  three-fifths  of 
the  qualified  electors  voting  thereat,  and 
approved  by  the  legislature  as  herein 
provided  for  the  approval  of  the  charter. 
In  submitting  any  such  charter,  or 
amendments  thereto,  any  alternative 
article  or  proposition  may  be  presented 
for  the  choice  of  the  voters,  and  may 
be  voted  on  separately  without  preju- 
dice to  others.  (Amendment  adopted 
November  8,   1892.) 

Sec.  8*4  It  shall  be  competent,  in  all 
charters  framed  under  the  authority 
givt  it  by  section  eight  of  article  eleven 
of  this  constitution,  to  provide,  in  ad- 
dition to  those  provisions  allowable  by 
this  constitution  and  by  the  laws  of  the 
state,  as  follows: 


X 


APPENDIX  I. 


1.  For  the  constitution,  regulation, 
government  and  jurisdiction  of  police 
courts,  and  for  the  manner  in  which, 
the  times  at  which,  and  the  terms  for 
which  the  judges  of  such  courts  shall 
be  elected  or  appointed,  and  for  the 
compensation  of  said  judges  and  of  their 
clerks  and  attaches. 

2.  For  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which 
the  members  of  boards  of  education 
shall  be  elected  or  appointed,  and  the 
number  which  shall  constitute  any  one 
of  such  boards. 

3.  For  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which 
the  members  of  the  boards  of  police 
commissioners  shall  be  elected  or  ap- 
pointed; and  for  the  constitution,  regu- 
lation, compensation,  and  government  of 
such  boards  and  of  the  municipal  police 
force. 

4.  For  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which 
the  members  of  all  boards  of  election 
shall  be  elected  or  appointed,  and  for 
the  constitution,  regulation,  compensa- 
tion, and  government  of  such  boards, 
and  of  their  clerks  and  attaches;  and 
for  all  expenses  incident  to  the  holding 
of   any   election. 

Where  a  city  and  county  government 
has  been  merged  and  consolidated  into 
one  municipal  government,  it  shall  also 
be  competent  in  any  charter  framed  un- 
der said  section  eight  of  said  article 
eleven,  to  provide  for  the  manner  in 
which,  the  times  at  which  and  the 
terms  for  which  the  several  county  offi- 
cers shall  be  elected  or  appointed,  for 
their  compensation,  and  for  the  number 
of  deputies  that  each  shall  have,  and 
for  the  compensation  payable  to  each  of 
said  deputies.  (Amendment  adopted 
November  3,  1896.) 

At  the  Extra  Session  in  11)00  the  Cali- 
fornia Legislature  proposed  an  amend- 
ment to  g  8  changing  the  requirement  of  a 
three-fifths  vote  (for  the  adoption  of  char- 
ter amendments)  to  a  provision  requiring 
only  a  majority  vote  (for  said  purpose). 

The  Missouri  Charter  Amendment. 

The  Constitution  of  Missouri 
(1875),  Art.  IX,  Sections  16  and  17 
provide  that: 

Sec.  16.  Any  city  having  a  population 
of  more  than  one  hundred  thousand  in- 
habitants may  frame  a  charter  for  its 
own  government,  consistent  with  and 
subject  to  the  Constitution  and  laws  of 
this  State,  by  causing  a  board  of  thir- 
teen freeholders,  who  shall  have  been 
at  least  five  years  qualified  voters  there- 
of, to  be  elected  by  the  qualified  voters 
of  such  city  at  any  general  or  special 
election;  which  board  shall,  within  nine- 
ty days  after  such  election,  return  to 
the  chief  magistrate  of  such  city  a  draft 
of  such  charter,  signed  by  the  members 
of  such  board  or  a  majority  of  them. 
Within  thirty  days  thereafter,  such  pro- 
posed charter  shall  be  submitted  to  the 
qualified  voters  of  such  city,  at  a  gen- 
eral or  special  election,  and  if  four- 
sevenths  of  such  qualified  voters  vot- 
ing thereat  shall  ratify  the  same,  it 
shall  at  the  end  of  thirty  days  there- 
after, become  the  charter  of  such  city, 
and  supersede  any  existing  charter  and 
amendments  thereof.     A   duplicate   cer- 


tificate shall  be  made,  setting  forth  the 
charter  proposed  and  its  ratification, 
which  shall  be  signed  by  the  chief  mag- 
istrate of  such  city  and  authenticated 
by  its  corporate  seal.  One  of  such  cer- 
tificates shall  be  deposited  in  the  office 
of  the  Secretary  of  State,  and  the 
other,  after  being  recorded  in  the  office 
of  the  recorder  of  deeds  for  the  county 
in  which  such  city  lies,  shall  be  de- 
posited among  the  archives  of  such  city, 
and  all  courts  shall  take  judicial  notice 
thereof.  Such  charter,  so  adopted,  may 
be  amended  by  a  proposal  therefor,  made 
by  the  law-making  authorities  of  such 
city,  published  for  at  least  thirty  days 
in  three  newspapers  of  largest  circula- 
tion in  such  city,  one  of  which  shall 
be  a  newspaper  printed  in  the  German 
language,  and  accepted  by  three-fifths 
of  the  qualified  voters  of  such  city, 
voting  at  a  special  or  general  election, 
and  not  otherwise;  but  such  charter 
shall  always  be  in  harmony  with  and 
subject  to  the  Constitution  and  laws  of 
the  State. 

Sec.  17.  It  shall  be  a  feature  of  all 
such  charters  that  they  shall  provide, 
among  other  things,  for  a  mayor  or 
chief  magistrate,  and  two  houses  of 
legislation,  one  of  which  at  least  shall 
be  elected  by  general  ticket;  and  in 
submitting  any  such  charter  or  amend- 
ment thereto  to  the  qualified  voters  of 
such  city,  any  alternative  section  or 
article  may  be  presented  for  choice  of 
the  voters,  and  may  be  voted  on  sep- 
arately, and  accepted  or  rejected  sep- 
arately, without  prejudice  to  other  ar- 
ticles or  sections  of  the  charter  or  any 
amendment  thereto. 

Special  provision  for  St.  Louis  was 
made  in  sections  20  to  23  inclusive, 
of  the  same  article,  as  follows: 

Sec.  20.  The  City  of  St.  Louis  may 
extend  its  limits  so  as  to  embrace  the 
parks  now  within  its  boundaries,  and 
other  convenient  and  contiguous  terri- 
tory, and  frame  a  charter  for  the  gov- 
ernment of  the  city  thus  enlarged,  upon 
the  following  conditions,  that  is  to  say; 
The  council  of  the  city  and  county 
court  of  the  county  of  St.  Louis,  shall, 
at  the  request  of  the  mayor  of  the  city 
of  St.  Louis,  meet  in  joint  session  and 
order  an  election,  to  be  held  as  pro- 
vided for  general  elections,  by  the  quali- 
fied voters  of  the  city  and  county,  of 
a  board  of  thirteen  freeholders  of  such 
city  or  county,  whose  duty  it  shall  be 
to  propose  a  scheme  for  the  enlargement 
and  definition  of  the  boundaries  of  the 
city,  the  reorganization  of  the  govern- 
ment of  the  county,  the  adjustment  of 
the  relations  between  the  city  thus  en- 
larged and  the  residue  of  St.  Louis 
county,  and  the  government  of  the  city 
thus  enlarged,  by  a  charter  in  harmony 
with  and  subject  to  the  Constitution 
and  laws  of  Missouri,  which  shall,  among 
other  things,  provide  for  a  chief  execu- 
tive and  two  houses  of  legislation,  one 
of  which  shall  be  elected  by  general 
ticket,  which  scheme  and  charter  shall 
be  signed  in  duplicate  by  said  board 
or  a  majority  of  them,  and  one  of  them 
returned  to  the  mayor  of  the  city  and 
the  other  to  the  presiding  justice  of 
the  county  court  within  ninety  days 
after  the  election  of  such  board.  With- 
in thirty  days  thereafter  the  city  coun- 


FREEHOLD  CHARTER  AMENDMENTS. 


XI 


cil  and  county  court  shall  submit  such 
scheme  to  the  qualified  voters  of  the 
whole  county,  and  such  charter  to  the 
qualified  voters  of  the  city  so  enlarged, 
at  an  election  to  be  held  not  less  than 
twenty  nor  more  than  thirty  days  after 
the  order  therefor;  and  if  a  majority 
of  such  qualified  voters,  voting  at  such 
election,  shall  ratify  such  scheme  and 
charter,  then  such  scheme  shall  become 
the  organic  law  of  the  county  and  city, 
and  such  charter  the  organic  law  of 
the  city,  and  at  the  end  of  sixty. days 
thereafter  shall  take  the  place  of  and 
supersede  the  charter  of  St.  Louis,  and 
all  amendments  thereof,  and  all  special 
laws  relating  to  St.  Louis  county  in- 
consistent with  such  scheme,     (a) 

Sec.  21.  Scheme  and  charter,  how  au- 
thenticated—Judicial Notice.— A  copy  of 
such  scheme  and  charter,  with  a  cer- 
tificate thereto  appended,  signed  by  the 
mayor  and  authenticated  by  the  seal  of 
the  city,  and  also  signed  by  the  pre- 
siding justice  of  the  county  court  and 
authenticated  by  the  seal  of  the  county, 
setting  forth  the  submission  of  such 
scheme  and  charter  to  the  qualified  vo- 
ters of  such  county  and  city,  and  its 
ratification  by  them,  shall  be  made  in 
duplicate,  one  of  which  shall  be  deposi- 
ted in  the  office  of  the  Secretary  of 
State,  and  the  other,  after  being  re- 
corded in  the  office  of  the  recorder  of 
deeds  of  St.  Louis  county,  shall  be  de- 
posited among  the  archives  of  the  city, 
and  thereafter  all  courts  shall  take  ju- 
dicial notice  thereof.       (b) 

Sec.  22.  Charter,  how  amended.— The 
charter  so  ratified  may  be  amended  at  in- 
tervals of  not  less  than  two  years,  by 
proposals  therefor,  submitted  by  the 
law-making  authorities  of  the  city  to 
the  qualified  voters  thereof  at  a  gen- 
eral or  special  election,  held  at  least 
sixty  days  after  the  publication  of  such 
proposals,  and  accepted  by  at  least 
three-fifths  of  the  qualified  voters  voting 
thereat.       (c) 

Sec.  23.  Charter  in  harmony  with  con- 
stitution and  laws — various  provisions  un- 
der.—Such  charter  and  amendments 
shall  always  be  in  harmony  with  and 
subject  to  the  Constitution  and  laws  of 
Missouri,  except  only  that  provision 
may  be  made  for  the  graduation  of  the 
rate  of  taxation  for  city  purposes  in  the 
portions  of  the  city  which  are  added 
thereto  by  the  proposed  enlargement  of 
its  boundaries.  In  the  adjustment  of 
the  relations  between  city  and  county, 
the  city  shall  take  upon  itself  the  en- 
tire park  tax;  and  in  consideration  of 
the  city  becoming  the  proprietor  of  all 
the  county  buildings  and  property  with- 
in its  enlarged  limits,  it  shall  assume 
the  whole  of  the  existing  county  debt, 
and  thereafter  the  city  and  county  shall 
be  independent  of  each  other.  The  city 
shall  be  exempted  from  all  county  tax- 
ation. The  judges  of  the  county  court 
shall  be  elected  by  the  qualified  voters 
outside  of  the  city.  The  city,  as  en- 
larged, shall  be  entitled  to  the  same 
representation  in  the  General  Asembly, 
collect  the  State  revenue  and  perform 
all  other  functions  in  relation  to  the 
State,  in  the  same  manner,  as  if  it 
were  a  county  as  in  this  Constitution 
defined;  and  the  residue  of  the  county 
shall  remain  a  legal  county  of  the  State 


of  Missouri,  under  the  name  of  the 
county  of  St.  Louis.  Until  the  next  ap- 
portionment for  senators  and  represen- 
tatives in  the  General  Assembly,  the 
city  shall  have  six  senators  and  fifteen 
representatives,  and  the  county  one 
senator,  and  two  representatives,  the 
same  being  the  number  of  senators  and 
representatives  to  which  the  county  of 
St.  Louis,  as  now  organized,  is  entitled 
under  sections  eight  and  eleven  of  ar- 
ticle IV  of  this  Constitution,     (d) 

The  Detroit  Charter  Law. 

In  Michigan  the  Direct  Legisla- 
tion League  in  1899  secured  an  act 
by  which  the  people  of  Detroit  can 
amend  their  own  charter.  The  Com- 
mon Council  on  its  own  initiative 
may  submit  a  charter  amendment  to 
a  referendum  of  the  people,  or  5,000 
voters  by  an  initiative  petition  may 
force  the  Council  to  submit  a  charter 
amendment. 

On  the  urging  of  the  League,  the 
Common  Council  on  August  2d,  by 
a  unanimous  vote,  agreed  to  sub- 
mit at  the  November  election  the 
following  amendment  to  the  people 
of  Detroit: 

"The  Common  Council  of  the  City  of 
Detroit  shall  not  grant  to  any  person 
or  corporation  a  franchise;  nor  extend 
the  life  of  any  existing  franchise  for 
the  use  or  control  of  any  public  utility, 
unless  such  franchise  shall  have  been 
first  submitted  to  a  vote  of  the  people 
of  said  city,  and  until  the  same  shall 
have  been  approved  by  a  majority  of 
the  electors  of  the  municipality  voting 
thereon  at  such  election.  All  grants  in 
contravention  of  this  provision,  and 
which  shall  not  have  been  first  sub- 
mitted to  a  vote  of  the  people  and  ap- 
proved by  a  majority  of  the  electors 
voting  thereupon,  shall  be  null  and 
void.  The  Common  Council  of  said  city 
may  in  its  discretion  submit  to  the 
electors  of  said  municipality,  either  at 
a  general  or  a  special  election  called 
for  that  purpose,  any  proposition  em- 
bodying the  granting  of  rights,  privi- 
leges or  franchises  for  the  use  or  con- 
trol of  public  utilities  in  the  City  of 
Detroit. 

"Provided,  that  any  one  and  all  prop- 
ositions which  are  to  be  submitted  to 
a  referendum  vote  shall  be  publisht, 
by  title  and  in  full  at  least  once  a  week 
for  eight  successive  weeks  immediately 
preceding  said  election,  in  at  least  four 
newspapers  publisht  in  the  City  of  De- 
troit, and  at  least  six  half-sheet  poster 
notices  displayed  conspicuously  in  each 
precinct  of  the  city;  and  the  Common 
Council  may  require  that  any  or  all  ex- 
penses thereby  entailed  shall  be  paid 
by  the  party  or  parties  applying  for 
franchise.     And  be  it  further 

"Provided,  That  this  amendment  shall 
not  apply  to  the  granting  of  any  fran- 
chise for  an  extension  not  exceeding 
one  and  one-half  (V/2)  miles  in  length 
on  any  street  where  a  street  railway 
franchise  exists,  for  a  term  equal  to 
the  unexpired  term  of  the  franchise  on 
the  line  so  extended." 


Appendix  II. 

CHARTER   MAKING. 

Suggestions  that  may  be  Useful  in  Making  Charters  under  the 
Proposed  Home-Rule  Amendment  (Appendix  I.  C). 

Or,  if  the  Legislature  is  Unwilling  to  give  Cities  full  Liberty 
to  Make  their  own  Charters,  it  may  still  be 
Willing  to  Adopt  a 

Liberal  Municipal  Corporations  Act, 

Prescribing  in  Concise  Terms  the  Main  Outlines  of  City 
Organization,  fixing  the  Features  in  respect  to  which  Uniformity 
is  deemed  desirable  and  leaving  the  rest  to  be  determined 
accordiny  to  the  judgment  of  each  particular  city. 

In  such  case  the  follovnng  provisions  (with  some  modifica- 
tions and  additions  which  will  occur  to  any  legislator  dealing 
with  the  matter)  may  be  found  valuable  as  suggesting  the  means 
of  framing  a  liberal  and  flexible  law. 

The  dual  nature  of  a  municipality  must  be  kept  clearly  in  mind.  It 
is  an  agency  of  the  State  in  respect  to  state  interests,  and  it  is  also  in 
business  on  its  own  account. 

In  respect  to  order,  education,  general  commerce,  health,  etc..  it 
has  interests  common  to  the  whole  state,  and  in  dealing  with  them  acts 
for  the  state  as  well  as  for  itself.  Within  such  agency  and  so  far  as  it 
may  be  seriously  affected  by  the  form  and  conditions  of  the  city  gov- 
ernment, it  is  right  for  the  state  to  prescribe  by  general  laws  what  the 
city  may  do  and  how  it  may  organize.  But  in  respect  to  such  matters 
as  street  paving,  local  transit,  municipal  franchises,  etc.,  it  is  clear  that 
the  local  interest  is  paramount,  and  full  freedom  within  the  limits  of 
just  dealing  should  be  accorded  the  city  in  such  affairs.  Even  where 
the  state  interest  is  strongest  as  in  matters  of  justice,  education,  de- 
fense, etc.,  the  local  interest  is  still  stronger.  The  citizens  of  a  city  are 
more  deeply  interested  in  the  order,  education,  and  safety  of  the  city 
than  the  rest  of  the  state  can  possibly  be.  By  the  fundamental  prin- 
ciples of  free  government  the  power  should  go  with  the  interest,  and 
the  city  should  have  full  liberty  to  work  out  its  own  well  being  in  its 
own  way  subject  to  such  general  limitations  as  may  be  necessary  to 
conserve  the  vital  interests  of  the  state.1    It  is  right  for  the  state  to  set 


1  The  conti-ary  system  now  in  vogue  whereby  the  city  has  no  rights  of  its 
own  but  is  the  "creature  of  the  legislature,"  as  our  law-books  put  it,  is  one  of 
the  principal  reasons  for  the  mismanagement  of  our  cities,  the  corruption  of 

XII 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  XIII 

up  general  standards  in  respect  to  state  interests  below  which  no  muni- 
cipality must  fall  in  dealing  with  such  interests,  but  beyond  which  any 
city  or  town  may  go  as  far  as  it  chooses.  As  a  matter  of  fact  cities 
frequently  do  exceed  state  requirements  in  provision  for  education,  fire 
protection,  etc. 

The  charter  of  a  city  bears  the  same  relation  to  the  city  and  its 
government  that  the  constitution  of  a  state  bears  to  the  state  and  its 
government,  and  ordinances  are  to  the  city  what  statutes  are  to  the_ 
state.  The  municipal  constitution  like  the  state  constitution  should  ne 
simple,  brief,  comprehensive — a  statement  of  elementary  facts  and 
principles,  an  outline  of  municipal  policy,  the  framework  of  local 
government.  The  details  should  be  left  for  the  ordinances.  This  will 
make  the  government  clear,  strong  and  flexible — easily  understood 
and  easily  molded  as  occasion  may  require. 

With  this  thought  in  mind  in  addition  to  those  expressed  in  pre- 
ceding pages  respecting  municipal  sovereignty  in  local  affairs,  and 
free  initiative  in  all  affairs  subject  only  to  the  constitution  and  general 
laws  relating  to  state  and  national  interests,  we  present  the  following 
outline  as  a  suggestion  of  what  may  be  done  in  the  way  of  reducing 
a  charter  to  its  lowest  terms,  and  making  it  the  simple,  concise  and 
vigorous  instrument  it  ought  to  be.  Criticisms  and  suggestions  from 
our  readers  in  regard  to  this  outline  are  specially  requested  in  order 
that  we  may  render  it  more  perfect  in  future  publications.2 


our  legislatures  and  the  lack  of  municipal  patriotism  among  our  people.  It 
would  be  manifestly  absurd  for  the  National  Government  at  Washington  to 
control  the  internal  affairs  of  New  York,  Philadelphia  or  Chicago,  de- 
ciding that  one  street  shall  be  paved  with  asphalt,  another  with  stone;  that 
one  company  should  have  a  telephone  franchise,  another  a  gas  privilege  and 
a  third  enjoy  the  street  railway  monopoly;  that  one  city  officer  should  be 
elected  and  another  appointed;  that  the  salary  of  one  city  official  should  be 
$5,000,  another  $10,000,  and  the  terms  1  year,  2  years,  3  years,  etc.  Our 
people  would  regard  such  control  as  despotic  interference  of  outsiders  in 
affairs  of  local  concern.  Yet  it  is  only  a  little  less  absurd  to  allow  a  Legis- 
lature in  Albany,  Harrisburg  or  Springfield  to  determine  such  matters  for 
New  York,  Philadelphia  or  Chicago.  The  legislature  determines  whether  or 
no  a  city  may  own  and  operate  its  street  railways,  telephones  and  water 
service,  how  wide  its  streets  shall  be,  what  officers  it  shall  have.  Down  to 
the  minutest  detail  our  Legislatures  may  and  do  regulate  the  organization, 
methods,  powers  and  activities  of  our  cities.  If  it  were  not  for  the  blinding 
power  of  usage  we  should  regard  this  also  as  despotic  control  of  outsiders  In 
local  concerns,  and  would  start  a  crusade  to  free  our  cities  from  their  "abject 
slavery  to  legislative  despotism." 

2  Dr.  Taylor  desired  an  outline  or  skeleton  of  a  city„  charter  to  send 
to  legislators  and  other  progressive  men  along  with  the  reasons  for  mu- 
nicipal liberty  and  the  proposed  forms  of  constitutional  amendment  and 
statutory  enactment  intended  to  secure  such  liberty,  so  that  if  the  reader 
were  disposed  to  take  a  part  in  this  great  movement  for  truer  self-govern- 
ment,  he  might  have  before  him  the  model  of  a  liberty  charter  whereby 
he  might  attain  a  clearer  idea  of  the  work  to  be  done  in  this  field  from 
start  to  finish.  The  intricacy  and  difficulty  of  the  task  and  the  lack  of  any 
satisfactory  precedents  made  me  very  reluctant  about  attempting  to  draw 
a  model  charter.  But  the  Doctor  mildly  persisted  as  he  always  does  when  he 
knows  he  has  a  good  idea,  and  finally  I  said  I  would  make  the  effort  provided 
the  thing  should  not  be  called  "a  model  charter,"  but  only  "suggestions  for 
a  model  charter"  to  which  the  Doctor  readily  assented,  that  being  in  fact 
exactly   what  he  wanted. 

So  I  gathered  a  pile  of  freehold  charters  adopted  in  western  cities 
under  the  homo-rule  amendments,  got  out  my  notes  of  the  various  munici- 
pal acts  or  statutory  charters  in  our  States,  analyzed  the  "Municipal  Pro- 
gram" put  fdrth  by  Dr.  Albert  Shaw,  Hon.  Clinton  Rogers  Woodruff,  Prof. 
Rowe  of  Pa.  University,  Prof.  Goodnow  of  Columbia,  and  other  eminent 
authorities,  made  a  list  of  the  principles  and  methods  successfully  applied 
in  public  affairs  in  England,  Germany,   Switzerland  and  New  Zealand,   and 


XIV  APPENDIX  II. 

SUGGESTIONS  FOR  A  MODEL  CHARTER.       '„ 
CHARTER.  OF 

Name  of  City. 

r  - 

Aeticle  1.     T!he  City. 

§  1.   Name  and  boundaries  of  the  city. 
§  2.  Wards  or  divisions  of  the  city  to  be  fixed  by  ordinance 
and  changed  as  occasion  may  require. 

Article  2.     Powers. 

§  1.  The  city  shall  have  entire  control  of  its  streets,  local 
franchises  and  public  utilities,  roads,  parks,  fire,  water,  gas 
and  electric  light  services,  street  railways,  local  telephone  ex- 
change and  other  distinctly  municipal  affairs.  In  respect  to 
safety,  order,  health,  education,  general  commerce  and  com- 
munication, and  other  state  interests  the  city  shall  be  free 
to  act  in  any  way  it  deems  best  provided  it  does  not  run 


In  our  own  cities,  States  and  nation,  and  lastly  set  down  such  possible 
methods  as  I  could  think  of  in  aid  of  the  great  purposes  of  municipal 
sovereignty  in  local  affairs,  real  government  by  and  for  the  people,  the 
merit  system  of  civil  service  and  public  ownership  of  public  utilities.  Then 
I  crossed  oft"  clause  by  clause  what  seemed  superfluous  or  objectionable  or 
clearly  unattainable,  classified  and  condensed  what  remained,  and  so  worked 
out  a  charter  form  which  was  submitted  to  a  referendum  (the  Dr.  was 
the  referendum  as  well  as  the  initiative  in  this  case)  and  so  fortunate 
was  the  suggested  charter  that  it  was  adopted  on  the  first  ballot  by  unani- 
mous vote  with  no  change  but  in  three  or  tour  words  of  Art.  3,  and  Art.  10. 

It  will  be  found  very  unlike  the  complex,  verbose  municipal  acts  that 
cumber  the  statute  books  of  so  many  States.  It  is  much  more  simple  and 
concise  than  even  the  newly  adopted  freehold  charters  of  St.  Louis.  Kansas 
City,  Eos  Angeles,  San  Francisco,  etc.  The  habit  of  putting  in  city  charters 
a  large  amount  of  matter  which  ought  to  be  left  to  the  ordinances  makes 
such  charters  needlessly  cumbersome.  For  example  it  is  usual  to  describe 
the  wards  in  full  in  the  charter,  filling  sometimes  several  pages  with  the 
details  of  a  subject  that  is  in  flux  and  must  be  dealt  with  from  time  to 
time  by  ordinance  and  should  be  left  to  ordinances  from  the  start  under  a 
broad  charter  clause.  If  brevity  is  really  the  soul  of  wit,  our  suggested 
charter  is  certainly  a  witty  document  (tho  you  might  not  discover  the  fact 
without  the  aid  of  this  time-honored  maxim)  and  it  contains,  moreover, 
many  novel  features  such  as  the  overlapping  term  for  appointive  offices  of 
a  non-political  nature  (a  new  plan  of  cooling  the  plunder  motive  and  barring 
the  spoils  system  now  presented  for  the  first  time,  so  far  as  I  am  aware), 
the  civil  service  court,  the  expanded  system  of  mutual  checks  between 
administrative  departments  and  between  legislative  and  administrative 
officers,  the  popular  recall  and  the  definit  sphere  of  municipal  sovereignty 
(the  first  attempt  I  believe  to  define  the  sphere  of  local  government,  or 
reduce  the  principle  of  the  popular  recall  to  definit  phrasing  in  a  charter 
provision),  direct  nominations,  majority  choice,  direct  legislation,  propor- 
tional representation,  etc.  The  substance  of  the  provisions  relating  to  public 
ownership  of  public  utilities  is  takeu  from  the  new  freehold  charter  of 
San  Francisco— a  free  rendering  and  much  condensed,  but  retaining  the 
spirit  and  essence.  The  provision  for  gradual  extinguishment  of  the  capital 
of  public  service  plants  was  suggested  by  the  policy  of  Prussia  and  Belgium 
and  other  countries  in  respect  to  national  railways  and  other  public  utili- 
ties, and  the  practice  in  many  of  our  own  cities  in  respect  to  water  and 
electric  plants.  The  industrial  arbitration  clause  and  the  co-operative  con- 
struction of  public  works  find  abundant  justification  in  the  wonderful  suc- 
cess of  these  methods  in  New  Zealand.  The  safeguards  against  corrupt 
practices  and  the  power  of  executive  and  legislative  authorities  to  push  each 
other  out  of  office  and  carry  the  whole  policy  of  the  government  to  the 
people,  are  applications  of  principles  that  have  proved  of  the  utmost  value 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  XV 

counter  to  state  law.    Where  it  touches  ^National  interests  the 

city  is  subject  to   the    constitution    and  laws  of  the    United 

States.     "Where  it  touches  state  interests  it  is 

Municipal  subject  to    the    constitution    and  laws  of  the 

Sovereignty.  J  ,  •%      \m  • 

State.  But  m  local  business  and  affairs  dis- 
tinctly municipal  the  city  is  sovereign.  In  this  field  it  shall 
act  without  interference  or  control  by  the  legislature.'  And 
beyond  this  field  it  shall  be  free  to  act  within  the  limitations 
of  state  and  national  law. 

Under  this  power  the  city  may  hold,  use,  mortgage,  lease 
or  sell  property,  real  and  personal,  for  any  lawful  purpose; 
own  and  operate  any  public  utility;  annex  territory  with 
assent  of  the  people  of  such  territory  and  of  the  city  upon, 
referendum  vote  of  each;  levy  and  collect  taxes,  and  do  any 
other  act  not  inconsistent  with  paramount  law  as  above  stated. 

Article  3.     Government. 

The    Peoole,    Mayor,    Council,    Appointing    Power,    Removal,     Popular 
Recall,  Council's  Power,  Etc. 

§  1.  The  government  of  the  city,  except  so  far  as  exercised 
by  the  people  directly,  shall  be  vested  in  a  Mayor  and  Council 
subject  to  the  limitations  hereinafter  expressed. 

in  England  and  the  Australian  republics.  The  Governor's  power  »to  remove 
the  Mayor  is  from  the  Municipal  Program,  and  seems  clearly  right.  The 
oily  government  with  the  Mayor  at  its  head  is  the  agent  of  the  State 
as  well  as  of  the  city,  and  both  principal  should  have  the  power  of 
removal.  The  sections  relating  to  the  controller,  the  debt  limit,  civil 
service  and  publicity,  also  owe  something  to  the  Program,  tho  they  do 
not  follow  it  exactly  and  entered  the  preliminary  analyses  from  other 
sources  as  well  as  from  the  Program.  The  Program  charter  (which  is  a 
suggested  municipal  act  or  statutory  charter)  limits  the  city  to  a  council 
of  one  chamber.  For  a  State  enactment  the  provision  of  the  Minnesota 
Freehold  Charter  Amendment  allowing  a  city  to  have  one  legislative  body 
or  two  seems  preferable.  The  idea  of  having  two  councils  is  that  one  may 
act  as  a  check  upon  the  other.  Where  direct  legislation  is  adopted  such 
a  check  would  seem  no  longer  necessary,  but  the  question  of  one  chamber 
or  two  should  be  decided  by  the  city,   not  by  the   State. 

The  "Municipal  Program"  was  adopted  by  the  National  Municipal  League 
in  Nov.,  1899.  It  consists  of  10  large  pages  of  proposed  constitutional 
amendments  and  nearly  40  pages  of  a  proposed  Corporations  Act  or 
statute  charter.  This  Program,  tho  of  the  great  value  we  believe,  seems 
too  long,  and  omits  some  very  important  provisions  while  adopting 
some  others  that  appear  to  us  objectionable;  for  example  we  can  not  see 
why  the  right  to  make  home-rnle  charters  should  be  confined  to  cities  of 
25,000  or  more.  Why  should  a  city  of  10  or  15  or  20  thousand  people  be  denied 
the  right  of  self  government?  California  already  permits  any  place  of 
3,500  people  or  more  to  make  a  freehold  charter,  and  Minn,  allows  any  city 
or  town  this  right  of  municipal  liberty.  Again  we  think  it  a  mistake  to  give 
the  mayor  power  to  appoint  and  remove  at  will  all  heads  of  departments 
except  the  controller,  and  all  officers  and  agents  In  the  administrative  service, 
etc.  It  is  well  to  concentrate  the  attention  of  voters  at  elections  upon  few 
officers,  but  there  is  such  a  thing  as  carrying  the  process  too  far.  We  think 
there  are  other  officers  who  should  be  elected  directly  by  the  people  besides 
the  mayor  and  council.  It  is  well  to  fill  by  appointment  administrative  offices 
where  trained  experts  are  needed,  but  it  is  a  mistake  to  limit  the  terms 
in  these  offices  so  that  they  all  become  vacant  just  as  a  new  mayor  comes  in. 
City  engineer,  health  officer,  treasurer,  assessor,  superintendent  of  schools. 
fire  marshal,  street  commissioner,  chief  of  the  water,  gas,  electric  light,  or 
transit  departments  and  nil  the  rest,  at  the  disposal  of  the  mayor  at  once 
upon  election,  offer  large  temptations  to  organize  and  carry  the  election  for 
plunder.  The  power  of  arbitrary  removal  in  respect  to  such  officers  seems 
also  very  objectionable.     Some  of  the  suggestions  as  to  the  controller  are  ex- 


XVI  APPENDIX  II. 

|  2.  The  mayor  shall  be  elected  by  the  people  by  majority 
vote  under  an  adequate  system  of  preferential  voting,3  and 
shall  hold  for  2  years  unless  sooner  removed  by  death  or  the 
Governor  or  the  people. 

The  mayor  may  present  measures  to  the  council  and  may 
be  present  at  council  meetings,  and  address  the  council  hut 
may  rfot  vote.  He  may  veto  auy  ordinance  passed  by  the 
council  (see  below).  He  may  present  measures  to  the  citi- 
zens directly  at  the  polls  at  a  regular  election  or  a  special 
election  if  he-  deems  it  necessary.  Subject  to  the  limitations 
hereinafter  expressed*  and  with  the  approval  of  the  council  the 
mayor  shall  have  power  to  appoint  all  heads  of  departments. 
Ho  may  remove  the  city  attorney  and  chief  of  police  at  will, 
and  upon  good  cause  shown  at  a  fair  public  hearing  he  may 
dismiss  any  other  head  of  department  within  the  mayor's 
appointing  power.  He  may  also  institute:  or  require  the  city 
attorney  to  institute  proceedings  in  the  Civil  Service  Court 
for  the  removal  of  any  officer  or  employee  of  the  city.* 

In  case  of  vacancy  in  the  office  of  mayor,  or  his  absence  or 
disability,  the  President  of  the  Council  shall  have  the  powers 
and  perform  the  duties  of  mayor  except  that  he  shall  not 
remove  any  officer  or  employee  until  he  has  occupied  the  chair 
mi  interruptedly  for  30  days. 

Removal — four  methods.  In  case  of  entire  inability  or 
gross  misconduct,  or  incompetence  the  mayor  may  be  removed 
by  the  Governor  after  a  public  hearing.  The  council  by  a 
2/3  vote  may  at  any  time  order  a  new  election  for  mayor  to 
take  place  not  less  than  30  nor  more  than  40  days  after  such 
vote  is  published.  The  mayor  may  issue  an  order  calling 
for  the  election  of  a  new  council  in  30  to  40  days  after  such 
order  is    published.5     A  petition  of    recall    signed  by  legal 


eellent  but  the  civil  service  commissioners  are  subject  to  removal  at  the 
pleasure  of  the  mayor,  which  makes  it  practically  impossible  for  them  to 
enforce  the  rules  as  to  appointments  and  removals  against  the  very  person 
who,  under  the  Program,  has  the  great  bulk  of  appointments  and  removals 
in  his  hands.  There  is  no  civil  service  court  or  other  adequate  means  of 
enforcing  the  law. 

3  A  system  permitting  each  voter  to  express  his  relative  preference  for 
each  of  the  candidates  by  marking  them  in  the  order  of  his  preference,  1st 
choice,  2d  choice,  etc.,  so  replacing  the  plurality  rule,  or  minority  government, 
by  majority  choice.  See  Chap.  VI,  "City  for  the  People,"  Equity  Series,  1520 
Chestnut  St.,  Philadelphia. 

4  The  mayor  is  the  agent  of  the  people  to  enforce  the  law  and  administer 
the  government.  To  do  this  effectively  the  police  and  legal  departments 
which  control  the  machinery  of  the  law  must  be  in  his  control.  But  the 
city  engineer,  street  commissioner,  fire  marshal,  superintendent  of  schools, 
chief  of  the  water  department  or  electric  light,  or  municipal  transit  depart- 
ment, henlth  officer,  assessor*,  treasurer,  city  clerk,  coroner,  etc.,  are  engaged 
>n  work  that  bears  little  if  any  relation  to  politics.  Such  officers  should  be 
experts  in  their  departments  and  have  a  tenure  far  above  the  whim  of  any 
official. 

s  These  provisions,  under  which  either  mayor  or  council  may  push  the 
other  out  of  office  in  30  days  (so  taking  the  whole  government  and  its  policy 
to  the  people)  embody  the  principle  that  has  been  found  of  such  utility  in 
England  and  Australia  in  giving  the  people  fuller  consideration  and  more 
vital  control  over  their  government,  both  legislative  and  administrative. 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  XVII 

voters  of  the  city  to  a  number  equal  to  a  majority  of  the 
total  vote  cast  for  mayor  at  the  last  preceding  mayoralty 
election  shall  be  equivalent  to  an  order  for  a  new  election 
of  mayor  30  to  40  days  after  the  filing  of  such  petition.  He 
may  also  be  removed  by  the  Civil  Service  Court.  ■ 

§  3.  The  council  6  shall  consist  of  members  elected'  by  the 

people  at  large,  one  member  to  each  voters.     It  may 

be  dissolved  by  order  of  the  mayor  or  by  popular  recall  in- 
the  manner  set  forth  in  §  2. 

It  may  elect  its  own  officers,  divide  the  city  into  wards, 
establish  such  departments  and  offices  as  it  may  deem  best; 
choose  committees  to  watch  the  operations  of  each  depart- 
ment and  consult  with  the  department  head  appointed  by 
the  mayor,  levy  and  collect  taxes,  vote  appropriations,  grant 
franchises  and  exercise  all  the  legislative  powers  of  the  city, 
subject  to  the'  veto  of  the  mayor  and  the  control  of  the  people 
through  the  referendum. 

Article  4.     Ordinances. 
Mayor's  Veto ;  Direct  Legislation,  Franchises,  Etc. 

§  1.  The  term  "ordinance"  shall  include  every  contract, 
grant,  resolution,  act  or  measure,  passed  by  council  or  sub- 
mitted to  the  legislative  discretion  of  the  people,  or  their 
agents  in  council.  Ordinances  shall  be  classified  as  general 
ordinances  corresponding  to  general  laws,  and  special  ordi- 
nances consisting  of  routine  orders  (selection  of  council  offi- 
cers, ordinary  levies  and  appropriations  within  established 
standards,  votes  upon  the  mayor's  appointments  and  upon 
dismissals,  etc.),  resolutions  concerning  the  decease  of  dis- 
tinguished men,  acts  relating  to  one  individual  or  company, 
personal  orders,  etc. 

§  2.  Every  ordinance  passed  by  council  shall  be  sent  to 
the  mayor.  Within  10  days  after  receiving  it  (or  at  the  next 
meeting  of  council  after  the  expiration  of  the  said  10  days) 
the  mayor  shall  return  it,  with  his  signature  or  with  his  veto 
and  the  reasons  for  disapproval.  If  not  returned  within  said 
time  the  ordinance  is  regarded  as  signed.  If 
Mayors  Veto.  vetoed  the  council  may  pass  it  over  the  veto 
by  a  2/3  vote.  After  an  ordinance  is  passed 
and  signed  by  the  mayor,  or  passed  over  his  veto,  it  shall 
be  published  at  least  once  a  week  for  4  weeks  in  one  or  more 
newspapers  designated  for  the  purpose  by  the  mayor  who 


e  With  the  check  of  the  referendum  a  single  chamber  is  sufficient  and 
tly  simplifies  the  government. 


XVIII  APPENDIX  II. 

may  make  a  general  order  on  the  subject,  and  an  additional 
special  order  in  any  particular  case:  if  he  deems  best. 

§  3.  Ordinances  other  than  established  routine,  or  urgency 

measures  necessary  for  the    immediate    preservation  of  the 

public  health,  peace  or  safety,  shall  not  go  into  effect  for 

30  days  after  passage  and  official  publication, 

Referendum.         ^  if  &w™%  that  time  legal  voters  of 

the  city  sign  a  petition  demanding  the  refer- 
endum on  any  such  ordinance,  it  shall  be  submitted  to  the 
people  for  final  decision  at  the  polls. 

§  4.   Ordinances  may  be  proposed  to  council  or  to  the  voters 
at   the   polls   by   the   mayor,    controller,    superintendent   of 
schools,   director  of  public  works,   or  civil  service   commis- 
sioner.    One  third'  of  the  council  may  order  any  ordinance 
or  proposed  ordinance  to  be  submitted  to  the 

The  initiative.       people,  and  on  petition  of  of  the  legal 

voters  of  the  city  proposing  a  specified  ordi- 
nance or  amendment,  it  shall  go  to  the  polls  together  with 
the  action  of  council  upon  it,  if  any. 

§  5.  Council  shall  within  a  reasonable  time  adopt  such 
ordinances  as  may  be  needed  to  determine  the  details  of 
municipal  action  under  this  charter  and  carry  its  policy  into 
effect,  and  all  such  ordinances  relating  to  direct  legislation 
andi  the  methods  and  details  of  its  use  shall  be  submitted  to 
the  people  and  approved  at  the  polls  before  going  into  effect. 

§  4.  No  franchise  shall  be  granted  for  a  longer  term  than 
20  years,    and    no    franchise    grant  shall  be 
Franchises.  valid  till  approved  by  the  people  at  the  polls. 

Franchise  grants  may  stipulate  that  at  the 
end  of  the  temi  the  property  shall  revert  to  the  city  free 
of  debt,  or  at  the  arbitration  value  of  the  physical  plant,  or 
contain  any  other  reasonable  provision  on  this  subject,  and 
whatever  other  terms  the  city  may  deem  best. 

No  public  plant  shall  be  sold,  leased  or  encumbered  except 
upon  a  referendum  vote  to  that  effect. 

Article  5.    Nominations. 

§1.  Nominations  of  elective  officers  shall  be  made  by  peti- 
tion signed  by qualified  voters  of  the  city  and  filed  in 

the  clerk's  office. 

Article  6.     Elections. 

Separation  of   State  and  Municipal  Elections,  Officers  and  Boards  Elected, 

Proportional  Representation,  Majority  Choice,  Ballot 

Machines,  Corrupt  Practices. 

§  1.  Municipal  elections  separated  from  state  and  na- 
tional elections  bv  at  least  1  month,  shall  be  held  at  suoh 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  X  I  X 

times  and  places  and.  in  such  manner  as  may  be  designated  by 
ordinance. 

§  2.  The  officers  elected  for  the  city  shall  be  a  Mayor \ 
and  Council,  as  above  described,  a  Controller,  School  Board, 
Director  of  Public  Works,  and  Civil  Service  Court,  and 
Commissioner  (see  below),  and  such  other  officers  as  may  be 
listed  for  election  by  statute  or  ordinance. 

§  3.  A  system  of  Proportional  Representation  7  may  be — 
adopted  by  ordinance  to  be  used  in  the  election  of  the  Coun- 
cil, School  Board,  Civil  Service  Court  and  other  official 
groups  that  may  be  required.  Such  system  may  be  applied 
to  all  the  members  of  council  or  other  group  or  to  part  only, 
the  rest  being  elected  on  the  district  plan. 

§  4.  Majority  Choice  or  Preferential  Voting 8  may  be 
adopted  by  ordinance  to  replace  the  plurality  rule  in  the 
election  of  single  officers. 

§  5.  The  Automatic  Ballot  may  be  established  by  ordi- 
nance providing  for  the  purchase  of  suitable  voting  machines, 
approved  by  the  state,  or  in  the  absence  of  designation  by 
statute,  the  city  may  buy  such  machines  as  it  deems  satis- 
factory after  thorough  testing  on  behalf  of  the  city. 

§  6.  The  Registration  of  Voters  shall  be  conducted  in  the 
manner  prescribed  by  law  and  ordinance. 

§  7.  A  candidate-elect  by  or  on  behalf  of  whom  bribery  or 
other  corrupt  practice  is  used  in  the  election  cannot  take  his 
seat.9  This  provision  miay  be  enforced  in  the  regular  courts 
or  in  the  Civil  Service  Court. 

Article  7.     The  Controller. 

§  1.  The  Controller  shall  be  elected  by  the  people  and 
shall  hold  for  4  years  unless  sooner  removed  by  the  Civil 
Service  Court  or  popular  recall. 

§  2.  He  shall  audit  all  bills  and  demands  against  the  citv, 
examine  the  accounts  of  every  department  and  report  any 
default  or  delinquency  he  discovers  in  the  accounts  or  con- 
duct of  any  officer.  Tie  shall  have  power  to  settle  claims 
against  the  city,  and  may  examine  under  oath  persons  Who 
present  claims,  and  other  witnesses. 

No  payment  of  city  funds  shall  be  made  except  upon  draft 
countersigned  by  the  Controller  after  he  has  audited  the 
claim  and  found  it  justly  due. 


7  See  Chap.  V,   "City  for  the  People,"  Equity  Series,  1520  Chestnut  St.. 
Philadelphia. 

8  See  reasons  and  methods  Chap.  VI,  "City  for  the  People." 

•This  is  the  principle  that  has  proved  of  such  great  value  in  England. 
See  Chap.  VIII,  "City  for  the  People." 


xx  appendix  ii. 

Article  8.     The  Schools. 

§  1.  The  supervision  and  management  of  the  schools  shall 
be  vested  in  a  superintendent  appointed  by  the  mayor  (with 

assent  of  council),  and  a  board  of members  elected  by 

the  people  to  hold  for  6  years,  1/3  being  elected  every  2 
years.  The  board  may  by  2/3  vote  dismiss  the  superin- 
tendent. 

§  2.  The  board  shall  have  charge  of  all  school  property. 
It  shall  lay  down  courses  of  study  and  make  regulations  sub- 
ject to  the  veto  of  the  superintendent  in  like  manner  as 
between  mayor  and1  council. 

§  3.  Subject  to  such  regulations  and  the  Civil  Service 
rules  the  superintendent  shall  have  charge  of  the  hiring  of 
teachers  and  the  supervision  and  direction  of  instruction  in 
the  schools. 

§  4.  Any  teacher  may  be  dismissed  by  the  board  subject 
to  appeal  to  the  Civil  Service  Court, 

Article  9.  Public  Works. 

Director    of   Public   "Works,  Public   Ownership,   Publicity  of   Corporation 

Accounts,  Etc. 

§  1.  A  Director  of  Public  Works  shall  be  elected  by  the 
people  to  hold  for  4  years  unless  sooner  removed  by  the  Civil 
Service  Court  or  popular  recall. 

§  2.  It  shall  be  the  policy  of  the  city  to  own  and  operate 
for  the  benefit  of  the  whole  people  all  local  public  utilities. 
To  this  end  the  Director  of  Public  Works  shall  make  or  cause 
to  be  made  careful  estimates  of  the  value  and  cost  of  con- 
struction and  operation  of  such  plants  as  exist  or  are  desirable 
for  the  carrying  on1  of  such  services.  For  this  purpose  the 
Director  and  his  agents  shall  have  full  access  to  the  books 
and  documents  of  any  corporation,  firm  or  person  engaged 
in  such  service  in  the  city,  and  may  summon,  witnesses  and 
examine  them  under  oath  subject  to  the  penalties  of  perjury 
if  they  testify  falsely.  The  information  so  obtained  shall  be 
reduced  to  clear  and  simple  form,  and  both  in  full  and  in 
its  reducted  form,  shall  be  kept  permanently  open:  to  public 
inspection  in  the  Director's  office  at  all  times  during  business 
hours. 

§  3.  The  Director  shall  from  time  to  time  submit  to  the 
council  and  to  the  voters  at  the  polls  propositions  for  the 
purchase  or  construction'  of  public  service  plants. 

§  4.  Debts  incurred  by  the  city  for  such  plants  shall  not 
be  charged  against  the  debt  limit  except  so  far  as  they  ex- 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  XXI 

oeed  the  fair  market  value  of  the  property  they  represent — 
the  structure  and  the  franchise  are  both  assets  in  the  hands 
of  the  city  balancing  an  equivalent  value  in  securities. 

§  5.  It  shall  be  the  policy  of  the  city  to  extinguish  the 
capital  obligations  resting  upon  public  service  plants  in  order 
that  they  may  become  completely  the  property  of  the  people 
free'  of  debt  and  render  sendee  to  the  community  at  the 
lowest  cost.  To  this  end  measures  shall  be  taken,  through  the 
adjustment  of  rates  or  otherwise,  to  gradually  extinguish, 
said  obligations  so  that  the  plant  may  be  free  in  20  to  50 
years  from  this  time,  or,  in  case  of  future  undertakings^  from 
the  time  of  construction  or  acquirement  by  the  city,  or  in 
a  less  time  than  20  years  if  so  voted'  by  the  people  on  a  refer- 
endum. 

§  6.  The  administrative  headte  of  departments  of  public 
works  such  as  water,  gas,  electric  light,  transit,  streets,  parks, 
etc.,  shall  be  appointed  by  the  mayor  with  assent  of  coun- 
cil, but  may  be  removed  by  the  Director  of  Public  Works 
at  will,  as  well  as  by  popular  recall  or  by  the  Civil  Service 
Court  or  the  mayor  upon  hearing. 

Article  10.     TkE  Civil  Service. 

Tine  merit  system  of  appointment  and  promotion  with 
tenure  during  good  behavior  and  efficient  service  shall  be 
the  settled  policy  of  the  city  in  respect  to  the;  employees  of 
every  department,. 

§  2.  A  Civil  Service  Commission  shall  be  elected  by  the 
people  for  4  years,  and  three  judges  of  a  Civil  Service  Court  y 
to  hold  6  years,  one:  to  be  elected  every  2  years. 

§  3.  These  four  persons  shall  draw  up  and  submit  to  the 
people  a  system  of  rules  to  carry  out  as  far  as  practicable  the 
principle  set  forth,  in  §  1,  making  it  a  part  of  the  plan  that, 
(excepting  private  secretaries  and  immediate  personal  assist- 
ants of  heads  of  departments,  and  similar  officials)  any  officer 
or  employee  removed  or  degraded  shall  have  an  appeal  to  the 
Civil  Service  Court  for  reinstatement  unless  good  cause  be 
shown  for  his  dismissal,  provided  of  course  that  this  is  not 
understood  to  overrule  express  provisions  in  this  charter  in 
respect  to  removal  in  particular  cases. 

§  4.  It  shall  be  the  Commissioners'*  duty  to  watch  the 
conduct  of  every  department  of  the  city  and  see  that  the  Civil 
Service  Rules  are  enforced^  in  good  faith  according  to  their 
spirit  and  purpose.  He  shall  have  full  access  to  the  records 
and  offices  of  all  departments  and  may  examine  under  oath 
any  officer  or  employee  from  the  mayor  to  a  laborer  on  the 


XXII  APPENDIX  II. 

streets.  In  case  of  violation  of  the  law  lie  may  notify  the 
offender  to  make  good  the  breach  and  conform'  to  the  law 
in  future.  If  this  proves  ineffective  or  he  thinks  best  to 
proceed  in  court  at  once,  he  shall  bring  the  case  before  the 
Civil  Service  Court,  which  may,  on  the  first  offence,  fine,  im- 
prison or  dismiss  the  offender  or  impose  any 
service°cmlrL  two  or  a^  t!nr0e  penalties,  but  on  the  second 
offense  shall  dismiss  the  guilty  official.  The 
action  of  the  court  shall  not  be  confined  to  enforcing  the 
merit  system  in  respect  to  the  appointment,  promotion  and 
retention  of  employees.  It  may  dismiss  any  officer  or  em- 
ployee of  the  city  for  misconduct  or  incompetence,  and  pro- 
ceedings for  this  purpose  may  be  instituted  by  tine  Mayor, 
City  Attorney,  Controller,  Superintendent  of  Schools,  Di- 
rector of  Public  Works,  or  other  head  of  department,  and 
upon  affidavit  that  a.  department  head  has  been  requested 
to  bring  such  action  on  reasonable  cause  and  has  refused, 
any  ten  citizens  may  institute  such  proceedings  in  said1  court. 
Any  employee  or  group  of  employees  or  any  officer  may 
appeal  to  the  court  to  prevent  or  punish  a  breach  of  the  Civil 
Service  Rules,  or  to  decide  any  question  relating  to  hours, 
wages  or  conditions  of  service,  and  its  decision 
^Titration.  afteT  fllU  bearing  of  all  sides,  shall  have  the 

force  of  law  subject  only  to  the  referendum 
if  a  petition  for  it  is  filed  in  the  court  within  30  days  after  such 
decision  is  published. 

§  5.   The  Commissioner  shall  secure  and  keep  on  file  in 
the  Tribunal  open  at  all  times  to  public  inspection,  a  correct 
list  of  all  officers  and  employees  of  the  citv, 
Publicity.  with  a  statement  of  the  title  and  remuneration 

of  each,  the  nature  of  his  duties,  date  of  elec- 
tion, appointment  or  employment  with  the  name  of  the  per- 
son appointing  or  employing  him,  and  date  of  termination 
of  service  with  the  reasons  therefor. 

Article  11.     Other  Officers. 

§  1.  A  chief  of  police,  and  a  city  attorney  shall  be  ap- 
pointed by  the  mayor  (with  assent  of  council)  for  2  years. 

§  2.  Judges  of  the  city  courts  established  by  ordinance  shall 
be  appointed  by  the  mayor  (with  assent  of  council)  to.  hold 
for  life  unless  dismissed'  by  the  Civil  Sendee  Tribunal  for 
inability,  misconduct  or  incompetence,  or  removed  by  the 
popular  recall. 

§  3.  A  superintendent  of  schools,  chief  of  the  water  de- 
partment,  electric  light,  street  railway  or  other  municipal 


SUGGESTIONS    FOR    A    MODEL    CHARTER.  XXIII 

service  the  city  may  own  and  operate,  street  commissioner, 
fire    marshal,    engineer,    health    officer,    city 

J'"  (TermPPUl(/  <&&&,  treasurer,  assessor,  collector,  coroner,  or 
other  officer  required  by    law    or    ordinance, 

shall  be  appointed  by  the  mayor  (with  assent  of  council)  to 

hold  for  3  years.10 

Article  12.     Salaries  and  Wages. 

§  1.  Salaries  of  officers  shall  be  fixed  by  ordinance  but 
shall  not  be  changed'  upon  any  officer  during  his  term. 

§  2.  Subject  to  Article  10,  §  4,  the  wages  of  employees 
shall  also  be  determined  by  ordinance  and  may  be  changed 
upon  3  months'  notice. 

Article  13.     Removals. 

By  the  Mayor,  Director  of  Public  Works,  Department  Heads,  Civil  Service 
Court  and  Popular  Recall. 

§  1.   For  removals  of  and  by  the  Mayor  see  Article  3,  §  2. 

§  2.  For  removals  of  and  by  the  Director  of  Public  Works 
see  Article  9,  §  1  and  §  6. 

§  3.  For  removals  by  the  Civil  Service  Court  see  Article 
10,  §  4. 

§  4.  The  head  of  a  department  may  for  good  cause  dis- 
miss any  employee  under  him  subject  to  appeal  to  the  Civil 
Service  Court  and  its  discretion  as  to  costs  under  the  Civil 
Service  Rules. 

§  5.  A  petition  signed  by  a  number  of  legal  voters  of  the 
city  equal  to  a  majority  of  total  vote  for  any  city  office  at 
the  last  preceding  municipal  election  may  require  a  new  elec- 
tion for  such  office. 
jpopuiar  Eecau.  In  respect    to    any    non-elective    officer  or 

employee  a  petition  for  dismissal  signed  by  a 
number  of  voters  of  the  city  equal  to  a  majority  of  the  total 
vote  cast  at  the  last  preceding  municipal  election,  shall  be 
mandatory  upon  the  head  of  the  department  involved  and 
upon  the  Civil  Service  Court,  and  shall  be  good  and  necessary 
cause  for  an  order  of  removal. 


10  The  object  of  overlapping  the  term  of  the  mayor  is  to  give  a  year  for 
any  partisan  feeling  awakened  in  the  campaign  to  die  away,  and  for  the 
mayor  to  become  thoroly  acquainted  with  the  character  and  capacity  of  the 
various  department  heads.  Under  such  circumstances  the  mayor  is  much  less 
likely  to  be  elected  on  a  spoils  basis  and  is  also  less  likely  to  fill  the  offices 
with  his  political  or  personal  friends  than  is  the  case  where  the  offices  go 
vacant  at  the  time  he  comes  to  the  chair.  Thus  we  gain  the  advantages  of 
the  appointment  system  in  securing  scientific  experts  instead  of  politicians  for 
the  heads  of  departments  and  at  the  same  time  reduce  to  the  lowest  terms 
the  dangers  of  the  appointing  power. 

The   ideal   we  think   would   be  that   such   officers  as    superintendent    of 


XXIV  APPENDIX  II. 

Article  14.    Impeachment. 

§  1.  Any  judge  or  head:  of  department,  elective  or  ap- 
pointive, may  be  impeached  for  gross  misconduct  or  mal-ad- 
ministration.  Such  impeachment  may  be  brought  by  the 
City  Attorney  or  any  100  legal  electors  of  the  city,  and 
shall  be  tried  before  the  council,  whose  adverse  judgment 
shall  not  extend  beyond  removal  from  office  and  disqualifi- 
cation for  any  future  office,  honor,  or  employment  at  the 
hands  of  the  city. 

Article  15.     Contracts. 

Direct  Employment,  Co-operative   Contracts,  Etc. 

§  1.  It  shall  be  the  policy  of  the  city  so  far  as  practicable 
to  substitute  direct  employment,  and  contracts  with  co-opera- 
tive groups  of  workers,  in  place  of  contracts  with  middlemen 
and  ordinary  non-co-operative  contractors.11 

Article  16.    Amendments. 

§  1.  Amendments  to  this  charter  may  be  proposed  by  the 
mayor,  council,  or  any  department  head,  or  by  petition  signed 
by legal  voters  of  the  city. 

§  2.  Such  proposal  shall  be  submitted  to  the  people  at  che 
polls  and  if  adopted  by  a  majority  of  those  voting  upon  it 
shall  become  a  part  of  the  organic  law  of  the  city  subject  to 
the  limitations  set  forth  in  Article  2. 


schools,  head  of  a  public  utility,  street  commissioner,  fire  marshal  and  similar 
officials  should  hold  during  good  behavior  and  efficient  service.  Their  positions 
demand  expert  knowledge  requiring  many  years  of  special  training  and  experi- 
ence, and  their  departments  are  in  no  sense  political  but  are  business  enter- 
prises in  which  a  steady  policy  and  entire  freedom  from  anxiety  about  elec- 
tions or  tenure  of  office  are  of  the  utmost  importance.  It  is  probable  however 
that  a  3  year  term  (overlapping  the  mayor  and  council)  and  removal  only  for 
cause  are  about  the  best  attainable  provisions  in  the  present  state  of  public 
opinion. 

11  The  principle  of  co-operative  labor  on  public  works  has  been  applied 
with  the  most  important  results  in  New  Zealand,  the  men  making  average  pay 
nearly  double  the  average  wages  received  under  the  old  system,  at  the  same 
time  that  the  buildings,  railroads,  etc.,  cost  the  state  less  than  under  the 
contract  system.     See  Henry  D.  Lloyd's  "Newest  England." 


INDEX  OF  SUBJECTS. 


HOME-RULE   FOR  CITIES,   (Chap.   Ill,  387-468)  -^ 

1.  importance  of  subject,  7-11,  428-9 
cities  like  women,  387 
legislative   paternalism,   387 

city  can't  connect  two  of  its  own  buildings  with  a  wire  except  by  permis- 
sion of  legislature,  387 

no  independent  initiative,   387,   406   (Eng.) 

must  get  permissn  to   move,   387 

can't  own  or  run  local  water,  gas  or  telephone  service  without  consulting 
the  other  cities  and  towns  of  the  State,  388 

legislature  can  plan  pub.  bldgs  for  a  city  and  make  it  pay  for  them,  388-9 
compel   city   to   pay  claim   rejected   in  court,   389 
take  water  works,  etc.,  out  of  city's  hands   (?),  390 

city's  franchise  not  a  contract,  390 

city's  charter  not   a  contract,   390 

cities  in   bondage,   390-1 

reasons  for  subjectn  of  cities,   391-2 

dual  nature  of  municipality— state  agency  and  local  business  concern 

key   to   the   situatn,   392,   412 

2.  limitations  on  legislative  omnipotence,  392-7 

inherent  right  of  local  self-govt,   393 
Michigan  doctrine  (Mich,  and  Ind.  cases),  393-6 
contra,    396  n. 

3.  rights  of  cities— general  situation,   397  summary 

4.  consequences  of  municipal  dependence,   398-405 

chaos  of  laws,  398,  539  (318-320,  402,  465-6) 

special   legislatn,   398-402.    (422   and   538) 

lack  of  elasticity,  402 

local   patriotism   crippled,    402-3 

log-rolling,    corruptn   and    bossism   favored,    403-4 

progress  obstructed,   404-5 

5.  remedy,   municipal'  independence  in  local  business,   405 

the  manhood  principle,  405-6 

assigned  sphere  of  local  sovereignty,  407-9 

const,   amendmts,  409,   415 

home-rule  charter  and   the  referendum,   410-1,   415,   428 

direct  legislatn,    merit    system,  and    pub.  ownshp  nec'y,  else  freedom 

from  legislative  bossing  may  mean  subjectn  to  local  politicians  and 

monopolists,  411,  428 
separatn  of  state  and  municipal  affairs,  411-3,  536 

6.  steps   toward  home-rule,    413-5,   429-430 

7.  freehold  charter  amendmts,  415-425,   431,  435-8. 

suggested  form,i-v 
Missouri,   415-6,   435,  x-xi,  full   text 
Louisiana,  416,  435 

Minnesota,    416-7,   435,  vnr-ix,  full    text 
Washington,   417,   435,  vn  vin,  full   text 
California,    418,   435,  ix-x,  full    text 
St..  Louis,   charter,   418-9,   422 
Los   Angeles'    charter,    4i9 
San   Francisco's  charter,   419-421,   438 

initiative  and  referendum,  419 

pub.    ownship,    420 

merit  system  of  civil  service,  420-1 
the  charters  still  subject  to  the  legislatures,  424-5 

8.  special   legislatn   forbidden,   422-3,   431,   431-4 

9.  points  for  future  charter  laws,  426.   (see  appendices) 

10.  summary   of   discussn   so   far,    427-430 

11.  Dr.    Shaw's   views,   428-9 
Gov.   Russell's   views,   399,    400 

Natl.    Municipal    League,    model    charter,    228,    229 

12.  constitutional  provisns  affecting  municipal  liberty,  431  table,  432-8,  455, 

(See  appendix  i) 

safeguards  against  special  legislatn,  431  table,  432-4  (see  422-3,  398-402) 

local   consent   required,   431   table,   434 

franchise  grants,   municipal  power,  431  table,  434,  448-9 

public  ownership,   municipal  power,  434 

charter  making,  municipal  power,  431  table,  435-8  (415-425  see  above) 

XXV 


XXVI  INDEX  OF  SUBJECTS. 

HOME-RULE   FOR   CITIES— continued 

13.  statute  provisns  affecting  municipal   liberty,  436-7  table 

debt  limitatns,  437,  438 

proposal  not  to  count  bonds  issued  for  revenue  producing  utilities, 
appendix  xx-xxi 
local  choice  of  local  officers,  437,  438-9 
municipal  baths,   libraries,   etc.,   439 
street   franchises,   439 
municipal   ownership,   436   table 

street   railways,   436   table,   440,   447,   448 

telegraphs  and  telephones,   436  table,  440-2,   447-9 

gas  and   electric  light  laws,  436  table,   442-9 

city  may  build  plant  tho  it  has  previously  granted  franchise  to  a 
private  co.,   443,   445 

hay   scales,    bicycle   pumps,    etc.,   464 
sale  of  franchises  at  auction,  449-452 
charter  of   Greater  New   York,   452 
local  consent  and  powers  of  grant,  436  table,  453-461,  462  table 

street  railways,  454,  458,  448-9,  459-461,  462  table 

electric  light,  455,  443-5 

telegraph  and  telephone,  448-9,  459,  460,  461,  462  table 

gas,  455,  443-5 

gas,  water,  elect,   light,   st.  rys.,  telephone,  454-5  sweep. 

property  owners  assent,  457,  459-460,  462  table 
appeal  to  court,   457,   461 

14.  sweeping  provisns  best,   456,   454-5,   458 

Minn.,  447,   458.    la.,   444 
Wash.,  448.    Cal.,  447 
Ind.,   448,    S.    Car.,   448 
Ky.,   448-9.    Wise,   449 
Kans.,  459.    Mo.,  450 

15.  referendum  provided  for,   456  summary 

Minn.,   442,   456,   458  sweep 

Wash.,   448,   456   sweep 

la.,  444,  456  sweep 

Wise,   449,   456   (Initiative   also) 

Mich.,  444,   456   (Initiative  also) 

Nebraska,  457   (Initiative  also) 

So.  Dakota,  457  (Initiative  also) 

16.  statute  provisns  easily  changed,   not  very  reliable,  463 

but  important  laws  soon  gather  about  them  a  sentimt  that  protects 
them,  463 

17.  the  honor  list  and  the  awkward  squad,— progressive  states  and  backward 

states,  464 

18.  even    the  best   statute   books   very   imperfect,   465 

legislatures  afflicted  with  intellectual  indigestion,— ponderous  ver- 
bosity, exasperating  repetitn,  chaos  of  enactmts,  largely  useless  or 
worse,    R.    I.,    N.   J.,    Mass.,   etc.,   465-6.    (398) 

19.  a  few  brief  sweeping  well  considered  measures  worth  more  than  masses 

of  ill-digested  statutes,  466 

20.  conclusions,   467-8 
LEGISLATIVE  FORMS.    (Appendix  i) 

Suggestions   for   constitutional    amendmts    and    statutory    enactments 

in   aid  of  municipal  liberty,  appendix,  p.  i 
Existing  freehold  charter  amendments,  appendix,  p.  VII 
MODEL  CITY  CHARTER,   suggestions  for.     (Appendix  n) 
Charter  making,  anpendix,  p.  xn 
Charter  form,  appendix,  p.  xiv 


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.V.i,£r..?,^KELEY  LIBRARIES 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


CITIES 

M  J3T  GET  PERMISSION  TO  MOVE. 

THE  LEGISLATURE  GIVES  THEM  SUCH   POWERS  AS  IT   PLEASES, 

ABRIDGES  AT  WILL,  OR  ANNULS  THEIR  PRIVILEGES, 

MAY  EVEN   DIVIDE  THEM  OR  CONSOLIDATE  TWO  OR   MORE  OF  THEM 

INTO  ONE  WITHOUT  THEIR  ASSENT, 

ATTACH  A  CONDITION  TO  THEIR  CONTINUED  EXISTENCE, 

OR   ABOLISH  THEM  COMPLETELY. 

IN  THE  LANGUAGE  OF  THE  LAW,  A  CITY  IS 

"A  CREATURE   OF  THE    LEGISLATURE." 

THIS 

MUNICIPAL  SUBJECTION 

CONSTITUTES  ONE  OF  THE  PRINCIPAL  REASONSlFOR  THE 

MISMANAGEMENT  OF  OUR  CITIES, 

THE  CORRUPTION  OF  OUR  LEGISLATURES, 

AND  THE  LACK  OE  LOCAL  PATRIOTISM  AMONG  OUR   PEOPLE. 

THE    REMEDY 

IS  A  CONSTITUTIONAL  AMENDMENT 

GIVING  CITIES  AND  TOWNS  THE  RIGHT  TO  MAKE  THEIR  OWN  CHARTERS 

WITHIN   BROAD  LIMITATIONS,  AND 

SUBJECT  TO  LEGISLAT  ON  RESPECTING  STATE  INTERESTS, 

BUT  FREE  OF  LEGISLATIVE  INTERFERENCE 

IN  LC    AL  BUSIN"SS  AFFAIRS, 

WHICH  SHOULD  BE  GIVEN  OVER  TO 

MUNICIPAL  SOVEREIGNTY 

ON  THE  SAME  FRINC1PLE  THAT  HAS  ESTABLISHED  NATIONAL  SOVEREIGNTY 

IN  NATIONAL  AFFAIRS,  STATE  SOVEREIGNTY  IN  STATE  AFFAIRS, 

AND  INDIVIDUAL  SOVEREIGNTY  IN   INDIVIDUAL  AFFAIRS. 


